Appeal from the United States District Court for the Eastern District of Wisconsin. No. 07-CR-171-Lynn Adelman, Judge.
The opinion of the court was delivered by: Easter Brook, Chief Judge.
Before EASTERBROOK, Chief Judge, and POSNER and KANNE, Circuit Judges.
David Szymuszkiewicz was in trouble at work. His driver's license had been suspended for driving while drunk. This threatened his job because, as a revenue officer, Szymuszkiewicz was required to travel to delinquent taxpayers' homes. He worried he might be fired. One response, a jury found, was to monitor email messages sent to his supervisor, Nella Infusino. She found out by accident when being trained to use Microsoft Outlook, her email client. She discovered a "rule" that directed Outlook to forward to Szymuszkiewicz all messages she received. Szymuszkiewicz was convicted under the Wiretap Act for intentionally intercepting an electronic communication. See 18 U.S.C. §2511(1)(a). The district judge denied his motion for a judgment of acquittal. 2009 U.S. Dist. LEXIS 60755 (E.D. Wis. June 30, 2009).
The district judge rightly rejected Szymuszkiewicz's attack on the sufficiency of the evidence. He had both motive and opportunity; direct evidence is not required. Szymuszkiewicz had access to Infusino's computer when she left her desk and could have set up a forwarding rule while she was away. Szymuszkiewicz denies knowing of Outlook's capacity for rules, but other IRS employees testified that this was common knowledge, and one witness testified that Szymuszkiewicz was sophisticated about computers. A motive to spy could foster a motive to learn the necessary steps. Szymuszkiewicz maintains the forwarding must have been a mistake. He occasionally stood in as acting man-ager, and so emails to Infusino would sometimes reach him legitimately. But agents found emails to Infusino stored in a personal folder of Szymuszkiewicz's Outlook client-in other words, Szymuszkiewicz not only received the emails but also moved them from his inbox to a separate folder for retention-which is not what would have happened had all of Szymuszkiewicz's access been legitimate.
Although forwarding lasted three years, most of the emails discovered on Szymuszkiewicz's computer were sent in the first half of each year, and none discusses his employment. He did not learn anything worthwhile. But an intentional interception is enough; the prosecutor need not show that the spy obtained valuable information. In re Pharmatrak, Inc., 329 F.3d 9, 23 (1st Cir. 2003); United States v. Townsend, 987 F.2d 927 (2d Cir. 1993). The jury could have chosen to believe Szymuszkiewicz's contention that he received Infusino's emails legitimately, or by mistake, but the evidence supported the more sinister inference that he obtained them intentionally and without her knowledge.
Szymuszkiewicz contends that he should have been charged under the Stored Communications Act, 18 U.S.C. §§ 2701--12, rather than the Wiretap Act. He asserts that the rule on Infusino's computer directed the email system to forward her emails to him only "after the message arrive[d]." As a result, he says, he did not "intercept" anything, for (at least in football) "interception" means catching a thing in flight, and any message would have reached its destination (Infusino's inbox) before a copy was made for him. The Stored Communications Act covers illegitimate access to information that has come to rest on a computer system, making it the right statute, Szymuszkiewicz concludes.
It is risky to defend against one crime by admitting another. A court may be tempted to order a technical correction in the judgment if proof of one offense establishes all elements of the other. (Szymuszkiewicz's sentence, 18 months' probation, could have been meted out under the Stored Communications Act, which allows a year's imprisonment for even the least serious violation. 18 U.S.C. §2701(b)(2)(A). And the sentencing guidelines for the two crimes, though not identical, both place a person low on the sentencing table.) But it is unnecessary to pursue that possibility, because Szymuszkiewicz's argument is based on the belief that Infusino's computer did the forwarding after each email arrived there. The evidence permitted the jury to find, however, that every message to Infusino went through the IRS's regional server in Kansas City, and that the server retained the message in its own files and dispatched two copies: one for Infusino and another for Szymuszkiewicz. Outlook's default is for an email client to send all rules to the server, which implements them. Only a rule that cannot be executed fully by the server requires help from a client machine. Microsoft Corporation, E-Mail Rules Protocol Specification [MSOXORULE] §1.3.3 (2010). The prosecutor introduced a log from the Kansas City server showing that, when a message to Infusino arrived, the server sent a copy to Szymuszkiewicz within the same second; no action by Infusino's computer was necessary. The log shows that the rule Szymuszkiewicz created was implemented on the server side (per Outlook's norm), rather than the client side. The copying at the server was the unlawful interception, catching the message "in flight" (to use Szymuszkiewicz's preferred analogy).
What's more, it does not matter which computer did the copying. To see why, we need to take a brief foray into the world of packet switching, the method by which nearly all electronic communications between computers are now sent. When the Wiretap Act was enacted in 1968, the normal communications pathway was circuit switching: the telephone company's machinery (initially switchboards, then mechanical solenoids, and finally computers) would establish a single electronic pathway, or circuit, between one telephone and another. Computers can communicate over dedicated circuits, but usually they break each message into packets, which can be routed over a network without the need to dedicate a whole circuit to a single message.
Each packet contains some of the message's content, plus information about the packet's destination. Each packet travels independently, moving from router to router within a network to find a path toward the ultimate destination. The Wikipedia entry on packet-switched networks contains a helpful description, plus citations to technical references. The routers, and the computers on both ends, arrange the packets (and their address information), and resend as necessary, so that at least one copy of each of the message's many packets reaches its goal. Lost packets can be repeated, and a whole message can be transmitted by sending each packet through a different route. Every packet may go by a different route. Only at the end are the pieces put back together and an intelligible communication formed. The path of any particular packet, and the order in which it arrives at the end, is irrelevant to the success of the communication. Computers use a recipe known as a protocol that enables them to agree on how packets are formatted and reassembled. The three principal protocols for email are POP, IMAP, and SMTP, standing for Post Office Protocol, Internet Message Access Protocol, and Simple Mail Transfer Protocol.
One copy of each email sent to Infusino thus would be broken into packets and routed to Kansas City, where a server would reassemble it. Two copies of each message-one for Infusino, one for Szymuszkiewicz-then would be flung across the network. The pace of transmission would depend on the packets' travel, not just the order in which they were originally generated. If, for example, more packets were lost for one message than another, or if one message's packets traveled through more-congested routers, the messages would arrive at different times. Transmission speed also depends on the email protocol selected. The time at which each recipient obtained each message also depended on whether the recipient's computer was connected to the Outlook server when the message reached the server. This would be so both for Outlook's proprietary protocol and for most email systems in use. See Microsoft Corporation, Mailbox Synchronization Protocol Specification [MS-OXCSYNC] (2010); Internet Engineering Task Force, Internet Message Access Protocol, RFC no. 3501 (v. 4 rev. 1, 2003). The server would hold the message until each client connected.
Szymuszkiewicz's understanding of "interception" as "catching a thing in flight" is sensible enough for football, but for email there is no single "thing" that flies straight from sender to recipient. When sender and recipient are connected by a single circuit, and the spy puts a "tap" in between, the football analogy makes some sense (though the tap does not prevent the recipient from getting the message; the spy gets a copy, just as Szymuszkiewicz did). For email, however, there are no dedicated circuits. There are only packets, segments of a message that take different routes at different times.
The Wiretap Act's definition of "interception" comprises packet-switch technology as well as circuit-switch technology. See United States v. Councilman, 418 F.3d 67 (1st Cir. 2005) (en banc). It defines "interception" as "aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device." 18 U.S.C. §2510(4); see also Doe v. Smith, 429 F.3d 706 (7th Cir. 2005). An "electronic communication" is, in turn, "any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photo-optical system that affects interstate or foreign commerce." 18 U.S.C. §2510(12). (We omit irrelevant exceptions.) Email messages are transfers of writings, and forwarding enabled Szymuszkiewicz to acquire those writings' contents. The difference between circuit-switch and packet-switch transmission methods thus is irrelevant under §2510. We agree with Councilman's conclusion on that subject (as well as its conclusion that the Stored Communications Act does not repeal any part of the Wiretap Act by implication; each statute is fully enforceable according to its own terms).
Several circuits have said that, to violate §2511, an interception must be "contemporaneous" with the communication. Fraser v. Nationwide Mutual Insurance Co., 352 F.3d 107, 113 (3d Cir. 2003); Steve Jackson Games, Inc. v. Secret Service, 36 F.3d 457 (5th Cir. 1994); Konop v. Hawaiian Airlines, Inc., 302 F.3d 868 (9th Cir. 2002); United States v. Steiger, 318 F.3d 1039, 1047 (11th Cir. 2003). Szymuszkiewicz sees this as support for his "in flight" reading, but it is not. "Contemporaneous" differs from "in the middle" or any football metaphor. Either the server in Kansas City or Infusino's computer made copies of the messages for Szymuszkiewicz within a second of each message's arrival and assembly; if both Szymuszkiewicz and Infusino were sitting at their computers at the same time, they would have received each message with no more than an eyeblink in between. That's contemporaneous by any standard. Even if Infusino's computer (rather than the server) was doing the duplication and forwarding, it ...