For decades, a major uncertainty about the scope of the Federal Wiretap Act has been how it applies to the repeated but discrete access that can often occur with electronic communications. Telephone wiretapping occurs in real time; the eavesdropper listens in. But electronic wiretapping can be periodic but discrete. An eavesdropper can access an account discretely but repeatedly over time. The question is, does the Wiretap Act, with its strong privacy protections, still apply?
Here's how I phrased the question in the LaFave Criminal Procedure treatise, for which I have written the electronic surveillance chapter, Chapter 4:
[A]n acquisition occurs under the Wiretap Act only if the collection of the communication is 'in flight' in real-time, during prospective surveillance of an ongoing communication. Exactly what this means can be tricky in cases involving electronic communications, as electronic communications can be stored or transmitted for extremely short periods of time. The basic question is this: If a tool makes copies of a communication shortly after it arrives at its destination, is that acquisition contemporaneous with transmission or is it only after the transmission has been completed? Put another way, can surveillance circumvent the Wiretap Act by acquiring communications immediately after they have arrived at their destination? If an e-mail account is accessed once an hour, is that an intercept? What about one a minute, once a second, or once a milli-second?
