Privacy Protection for Electronic Communications and the “Interception Unauthorized Access” Dilemma, 19 J. Marshall J. Computer & Info. L. 435 (2001)

When Congress foresaw the need for privacy protection for personal and commercial communications, it modified the Wire and Electronic Communications Interception and Interception of Oral Communications Act (“Wire-Tap Act”) through the Electronic Communications Privacy Act (ECPA) and added the Stored Communications Act to broaden the scope of prohibitions against electronic eavesdropping. Some questions, however, are raised by the interpretation of the Wiretap Act’s definition of “intercept” and the Stored Communications Act’s definition of “unauthorized access.” The authors of this comment explore the decisions in the cases Steve Jackson Games v. U.S. and Konop v. Hawaiian Airlines to resolve this question of the relationship of the two phrases. After a discussion of the privacy implications of relating to interpretation of the Wiretap Act, the authors conclude that courts should follow Steve Jackson Games and Konop to resolve the discrepancy.