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CRM 1000-1499

1061. Unlawful Access to Stored Communications—18 U.S.C. § 2701

The 1986 Act added new statutory provisions, 18 U.S.C. §§  2701 to 2710, to protect the privacy of stored electronic communications, either before such a communication is transmitted to the recipient, or, if a copy of the message is kept, after it is delivered. These provisions focus on technologies such as electronic mail and computer transmissions, where copies of the messages are kept. Electronic storage is defined in 18 U.S.C. § 2510(17) as both any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof and the storage of such communication by an electronic communication service for purposes of backup protection of such communication.

Section 2701 of Title 18 makes it an offense to either (a) intentionally access, without authorization, a facility through which an electronic communication service is provided; or (b) intentionally exceed the authorization of such facility; and as a result of this conduct, obtain, alter or prevent authorized access to a wire or electronic communication while it is in electronic storage in such a system. 18 U.S.C. § 2701(a). This section covers "electronic mail" service, which permits a sender to transmit a digital message to the service's facility, where it is held in storage until the addressee requests it, U.S.C. § 2701, as well as "voice mail" service.

This provision is intended to address "computer hackers" and corporate spies. The provision is not intended to criminalize access to "electronic bulletin boards," which are generally open to the public. A communication will be found to be readily accessible to the general public if the telephone number of the system and other means of access are widely known, and if a person does not, in the course of gaining access, encounter any warnings, encryptions, password requests, or other indicia of intended privacy. To access a communication on such a system is not a violation of the law. 18 U.S.C. §  2701(a).

If a violation of 18 U.S.C. § 2701(a) was committed for commercial advantage, malicious destruction or damage, or private financial gain, the violator could receive up to a year in prison and a fine as provided by Title 18, United States Code, for the first offense and up to two years imprisonment and a fine as provided by Title 18 for a second or subsequent offense. In all other cases, a jail term of up to six months and a fine under Title 18 could be imposed. 18 U.S.C. § 2701(b)(2).

[cited in JM 9-60.200]