Wrong--it is EXACTLY what the ECPA was intended to criminalize.
Can you cite any source for that assertion? That it was meant to send to federal prison for 5 years or more everyone who clicks on an un-secured computer folder and copies stuff therein, with no hacking or interception-of-signal-transmissions involved? Looks to me like the law was aimed at bigger fish. You're overstating your point here, and, with respect, it's making you smaller in my view.
Fraser v. Nationwide Mut. Ins. Co., 352 F.3d 107, 113-14 (3d Cir. 2003).On this matter of statutory interpretation which we review de novo, Moody v. Sec. Pac. Bus. Credit, Inc., 971 F.2d 1056, 1063 (3d Cir.1992), we agree with Nationwide. Every circuit court to have considered the matter has held that an "intercept" under the ECPA must occur contemporaneously with transmission. See United States v. Steiger, 318 F.3d 1039, 1048-49 (11th Cir.2003); Konop v. Hawaiian Airlines, Inc., 302 F.3d 868 (9th Cir.2002); Steve Jackson Games, Inc. v. U.S. Secret Serv., 36 F.3d 457 (5th Cir.1994); see also Wesley College v. Pitts, 974 F.Supp. 375 (D.Del.1997), summarily aff'd, 172 F.3d 861 (3d Cir.1998).
The first case to do so, Steve Jackson Games, noted that "intercept" was defined as contemporaneous in the context of an aural communication under the old Wiretap Act, [FN7] see United States v. Turk, 526 F.2d 654 (5th Cir.1976), and that when Congress amended the Wiretap Act in 1986 (to create what is now known as the ECPA) to extend protection to electronic communications, it "did not intend to change the definition of 'intercept.' " Steve Jackson Games, 36 F.3d at 462. Moreover, the Fifth Circuit noted that the differences in definition between "wire communication" and "electronic communication" in the ECPA supported its conclusion that stored e-mail could not be intercepted within the meaning of Title I. A "wire communication" under the ECPA was (until recent amendment by the USA Patriot Act, see note 8) "any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception ... and such term includes any electronic storage of such communication." 18 U.S.C. § 2510(1) (emphasis added) (superseded by USA Patriot Act). [FN8] By contrast, an *114(Cite as: 352 F.3d 107, *114) "electronic communication" is defined as "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 photooptical system ... but does not include ... any wire or oral communication." 18 U.S.C. § 2510(12) (emphasis added). Thus, the Fifth Circuit reasoned that because "wire communication" explicitly included electronic storage but "electronic communication" did not, there can be no "intercept" of an e-mail in storage, as an e-mail in storage is by definition not an "electronic communication." Steve Jackson Games, 36 F.3d at 461-62.Subsequent cases, cited above, have agreed with the Fifth Circuit's result. While Congress's definition of "intercept" does not appear to fit with its intent to extend protection to electronic communications, it is for Congress to cover the bases untouched. We adopt the reasoning of our sister circuits and therefore hold that there has been no "intercept" within the meaning of Title I of ECPA.FN7. The Wiretap Act was formally known as the 1968 Omnibus Crime Control and Safe Streets Act and was also found at 18 U.S.C. § 2510, et seq. As noted in the text infra, it was superseded by the ECPA.
FN8. The USA Patriot Act § 209, Pub. L. No. 107-56, § 209(1)(A), 115 Stat. 272, 283 (2001), amended the definition of "wire communication" to eliminate electronic storage from the definition of wire communication.
A case that shares some similarities to Miranda's is Wesley College v. Pitts, 974 F.Supp. 375 (D. Del. 1997), in which a college alleged that a former employee had accessed the college's mainframe, read certain emails there without authorization, and had illicitly passed on some information contained therein. (The College sued him under the civil provisions of the ECPA, which parallel its criminal ones.) The court held that it didn't need to decide whether this in fact occurred because, even assuming it had, such access was not an unlawful "intercept" under the ECPA; an "intercept," by definition, only can occur if the defendant obtains the information at the time it is INITIALLY being communicated to its intended recipient. See id. at 385.
It seems to me that the foregoing authorities rather strongly preclude the ECPA's applicability -- criminally or civilly, inasmuch as the underlying definitions are the same for both -- to reading and passing on the contents of already-existing files on a computer. For Miranda to be liable under the foregoing authorities, he would have to have "tapped" the computer network so as to get the memo files at the same time as their were saved (or sent) initially.