December 10, 2015
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 14 C 8431 -
Thomas M. Durkin, Judge.
Posner, Manion, and Sykes, Circuit Judges.
Epstein sued his estranged wife, Paula, alleging that she
violated the federal Wiretapping and Electronic Surveillance
Act by intercepting his emails. The action arises from the
couple's acrimonious divorce. Paula accused Barry of
serial infidelity, so in discovery Barry asked her for all
documents related to that accusation. Paula complied and
produced copies of incriminating emails between Barry and
several other women. Her discovery response spawned this
satellite litigation (the divorce action is still pending).
Barry alleges that Paula violated the Wiretap Act by
surreptitiously placing an auto-forwarding "rule"
on his email accounts that automatically forwarded the
messages on his email client to her. He also claims that
Paula's divorce lawyer violated the Act by
"disclosing" the intercepted emails in response to
his discovery request. The district judge dismissed the suit
on the pleadings.
affirm in part and reverse in part. The complaint doesn't
state a Wiretap Act claim against Paula's lawyer. The
lawyer can't be liable for disclosing Barry's
own emails to him in response to his
own discovery request. The allegations against Paula, on
the other hand, technically fall within the language of the
Act, though Congress probably didn't anticipate its use
as a tactical weapon in a divorce proceeding.
the following factual account from the amended complaint,
accepting it as true for present purposes. Paula and Barry
Epstein married in 1970. In 2011 Paula filed for divorce in
Cook County Circuit Court, accusing her husband of
infidelity. The divorce case has dragged on since then and
remains unresolved. During discovery Barry's lawyer sent
Paula's lawyer a document request asking for production
of "[a]ny and all communications, documents,
e-mails, text messages, photographs, notes, credit card
slips, bank statements, or other document whatsoever, which
allegedly relate to [Paula's allegation of]
Frank was Paula's lawyer. In response to this document
request, he produced (among other things) copies of email
correspondence between Barry and several women. On the face
of it, the messages seem to have been forwarded from
Barry's email accounts to Paula's. This came as a
shock to Barry; he inferred from this discovery response that
Paula must have secretly placed a "rule" on his
email accounts automatically forwarding his messages to her.
the divorce action still ongoing, Barry filed this federal
suit against Paula and Frank pursuant to 18 U.S.C. §
2520, which authorizes civil actions against persons who
violate the Wiretap Act. The complaint alleges that Paula
unlawfully intercepted, disclosed, and used Barry's
emails in violation of the Act, and that Frank violated the
Act by unlawfully disclosing and using the emails in the
divorce proceeding. Copies of some of the intercepted emails
were attached to the complaint as exhibits.
and Frank separately moved to dismiss for failure to state a
claim under Rule 12(b)(6) of the Federal Rules of Civil
Procedure. Both argued that intercepting an email doesn't
violate the Wiretap Act unless the acquisition occurs
contemporaneously with the email's transmission. The
emails attached to the complaint bear date and time markings
showing that they may not have been intercepted
contemporaneously with their transmission. The defendants
argued that this date and time information was enough by
itself to defeat Barry's Wiretap Act claim. Frank also
argued that he can't be liable under the Act for
disclosing Barry's own emails to him in response to his
own discovery request in the divorce proceeding. The judge
agreed with these arguments and dismissed the Wiretap Act
claims against both defendants.
Wiretap Act makes it unlawful to "intentionally
in-tercept [or] endeavor to intercept ... any wire, oral,
or electronic communication." 18 U.S.C. §
2511(1)(a). The Act also prohibits the intentional
"disclos[ure]" or "use" of the contents
of an unlawfully intercepted electronic communication.
Id. § 2511(1)(c)/ (d).
"[I]ntercepf' is defined as "the aural or other
acquisition of the contents of any wire, electronic, or oral
communication." Id. § 2510(4).
"[Electronic communication, " in turn, is "any
transfer of signs ... of any nature transmitted in whole or
in part by a wire, radio, electromagnetic, photoelectronic or
photooptical system." Id. § 2510(12).
parties' briefs are largely devoted to a debate about
whether the Wiretap Act requires a
"contemporaneous" interception of an electronic
communication-that is, an interception that occurs during
transmission rather than after the electronic
message has "come to rest on a computer system."
United States v. Szymuszkiewicz,622 F.3d 701, 703
(7th Cir. 2010). Several circuits have held that the Wiretap
Act covers only contemporaneous interceptions- understood as
the act of acquiring an electronic communication in
transit-rather than the acquisition of stored electronic
communications, which is addressed by the Stored
Communications Act. Fraser v. Nationwide Mut. Ins.
Co.,352 F.3d 107, 113 (3d Cir. 2003); United States
v. Steiger,318 F.3d 1039, 1047 (11th Cir. 2003);
Konop v. Hawaiian Airlines, Inc.,302 F.3d 868 (9th
Cir. 2002); Steve Jackson Games, Inc. v. Secret
Serv.,36 F.3d 457 (5th Cir. 1994). We noted this trend
in Szymuszkiewicz but had no occasion to decide