Unfaithful but Not Without Privacy Protections: The Seventh Circuit Addresses When Courts Should Consider an E-Mail Interception Unlawful in Epstein v. Epstein

Abstract

On December 14, 2016, the United States Court of Appeals for the Seventh Circuit, in Epstein v. Epstein, held that contemporaneousness is not a determinative factor at the pleadings stage of a claim for the unlawful interception of electronic communications under the Federal Wiretap Act (“FWA”). In so doing, the Seventh Circuit partly departed from the way in which other Federal Circuit Courts had previously considered the statutory language of the FWA, specifically the definitions of “electronic communication” and “intercept” under 18 U.S.C. § 2510(4), (12). This Comment argues that the Seventh Circuit’s holding that contemporaneousness is not a determinative factor at the pleadings stage stands more in line with the congressional intent of the Electronic Communications Privacy Act of 1986 (“ECPA”), which aims to provide privacy protections to electronic communications.