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Thursday, August 11, 2005

Councilman: Just What Does it Take for a Law to Be Vague?

WiretapTo nobody’s surprise, my colleague and electronic surveillance law expert extraordinaire Orin Kerr at the VC beat everybody to the punch in announcing that the 1st Circuit reversed the panel in United States v. Councilman.  As Kerr concisely explains the panel decision in an earlier post:

The Councilman case addresses an ambiguity in the line between the Wiretap Act and the Stored Communications Act. The question is, when is a file stored, and when is it in transit? This is a big question because on the Net communications are often at rest for very brief periods of time in the course of transmission, and the statutory text doesn't make particularly clear whether access to a file that is at rest for a nanosecond is supposed to be covered by the Wiretap Act or the Stored Communications Act. Councilman involved an ISP employee who wrote and installed a computer program to scan incoming e-mail of the ISP's customers; ISP employees would then read the e-mails and try to use them for the commercial advantage of the ISP. In a nutshell, the First Circuit held (by a vote of 2-1) that because the program scanned the e-mails while they were at rest for a nanosecond, the e-mails were in storage at that time and access to them was covered by the Stored Communication Act, not the Wiretap Act. Because Councilman had been indicted for violating the Wiretap Act, the Court affirmed the dismissal of Councilman's indictment.

The 1st Circuit en banc reversed.  I’ll leave it to Orin to comment about the merits of the new en banc decision on the Wiretap Act and Stored Communications Act.  I'd like to focus on the opinion’s discussion of vagueness.  This was a criminal case.  The en banc court writes:

The vagueness doctrine bars enforcement of a statute whose terms are so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application. . . .   Many statutes will have some inherent vagueness. . . . But a statute is unconstitutionally vague only if it prohibits . . . an act in terms so uncertain that persons of average intelligence would have no choice but to guess at its meaning and modes of application.  (internal quotations omitted).

The en banc court concludes that here a person of average intelligence would have adequate notice.

This seems like lip service to the vagueness doctrine.  What strikes me as interesting is that two judges in the 1st Circuit panel reached the opposite conclusion.  Does this mean that they are not people “of average intelligence”?   While I disagreed with the 1st Circuit panel’s prior decision in Councilman, the statute is very tricky and complicated on this point, and the judges were not morons for reaching the interpretation they did.  In fact, there were bills proposed in Congress to clarify the law after the Councilman panel decision came down.  Electronic surveillance law is very complicated, and before imposing criminal liability, the court should have more pause when recognizing the different ways the law might be interpreted.  It is my impression that this opinion is indicative of a general judicial reluctance to recognize vagueness arguments in criminal cases.  I don't have stats to back me up, but I've rarely read many successful vagueness challenges.  If the law in this case isn't vague, I wonder just how ridiculously ambiguous a statute must be to be vague.  Does it have to fool half the judges on a particular circuit?  I query whether the vagueness doctrine has any real meaning at all.

UPDATE: Orin Kerr at the VC has just posted his thoughts about the en banc decision.  Definitely worth reading. 

Posted by Daniel Solove on August 11, 2005 at 09:06 PM in Criminal Law, Daniel Solove, Information and Technology | Permalink


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» Councilman reactions from Appellate Law
For obvious reasons, the privacy/technology/etc. portion of the web has been a’buzz with the Councilman decision. So, I collected a few of the reactions. (This isn't my normal practice, but Councilman is one of the most important 1st Circuit cases.) [Read More]

Tracked on Aug 12, 2005 3:38:07 PM


I know I'm going against the flow here, but the 1st Circuit's decision makes a good deal of sense to me.

To me, the key phrase of the decision is, "in terms so uncertain that persons of average intelligence would have no choice but to guess at its meaning and modes of application." Even in criminal cases, the vagueness doctrine is not a tool of those who, either because they are extremely intelligent or extremely sneaky, find some loophole through which they could avoid a statute's prohibitions. It seems to me that that's exactly what Councilman did here.

There is no question, in an email sent from person A's email account to person B's email account, what the "point of origin" and "point of reception" are -- person A's account and person B's account, respectively. It seems pretty clear that "every person of average intelligence" would be able to figure that out.

The Wiretap Act explicitly recognizes that, in going from origin to destination, it may pass through a "switching station," and that such passage is part of the connection between A and B. It does not give that station free range to intercept the transmission.

The Stored Communications Act, on the other hand (assuming that the provision in question is 18 USC 2701) is silent with regard to service providers; rather, it is targeted towards outsiders hacking into providers' storage systems, and providers' employees accessing the storage absent their employers' approval. It's only statements about a provider who accesses (or approves access to) its own data storage is to expressly exempt them from the prohibitions of the Act. Based on my review of this provision (and if I'm looking at the wrong section of the Code please feel free to correct me), this is not at all applicable to Councilman or its actions.

In Councilman, the issue was a provider looking at messages travelling through itself to the messages' destinations. Any "person of average intelligence" can see that its behaviour violated the plain language of the Wiretap Act. Remember -- this is a legal standard meant for the use of judges and juries, not an engineering spec. The fact that a bunch of software engineers, looking at the minutiae of data transfer, could find a potential loophole that the Act did not expressly cover is, based on longstanding caselaw, insufficient to render the statute vague, even as applied to this defendant.

Posted by: R. Cyr | Aug 14, 2005 3:46:57 PM

Chris -- good catch. I knew that . . . I just don't know where my brain was when I kept typing 11th. The error is now fixed.


Posted by: Daniel Solove | Aug 11, 2005 11:10:29 PM

Great post. Yeah, it's the first circuit, and give some props to Judge Lipez. He's not only a genius, but also a statesman and a very careful and considerate lawyer. (Full disclosure: I clerked for 'im.)

Posted by: Ex 1C Clerk | Aug 11, 2005 11:06:41 PM

1st Circuit, not 11th.

Posted by: Chris | Aug 11, 2005 10:56:35 PM

The vagueness issue you raise has always troubled me.

Some judges (and Justices), e.g., argue that when the Court splits 5-4 in a qualified immunity case, then the officer should be entitled to QI by that fact (since, if 4 Justices don't think the law was clearly established, how can the reasonable officer have known it was clearly established). Incidentally, not one proponent of that rule has argued that where judges or Justices can't agree on what the law means, then the ordinary citizen should get a free pass in the first case to authoratively answer the question.

But I think you're right. If judges can't agree what a law means, then how can a "reasonable person" know what it means? Answer: a reasonable person can't know, and therefore should not be convicted.

Apropos vagueness, shouldn't a form of lenity kick in the first time a court hands down a definitive answer? In other words, "We hold that although X-law covers the defendant's conduct, since there are two reasonable interpreations of X-law, the defendant cannot, consistent with due process, be convicted." I posted on this a while ago in light of Pasquantiono, where a 5-4 split over whether the wire fraud statute covered the use of phones to evade foreign taxes. Sheesh, if lawyers can't agree, how can those of us required to follow the law know what the law means?

Posted by: Mike | Aug 11, 2005 10:38:00 PM

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