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Tuesday, June 25, 2013

City Not Liable Under Federal Wiretap Act

The Seventh Circuit recently ruled in favor of a municipality and dismissed a case involving access to an employee's non-government email account in Seitz, et al. v. City of Elgin
Greg Welter, a City police officer, held a partnership interest in a property management company with Debra Seitz.  Emails between the two business partners on their Yahoo! email accounts showed that Welter had used the Law Enforcement Agencies Data System ("LEADS") to research cars parked in front of his property management business.  LEADS can only be used in Illinois for criminal justice purposes.  Those emails were sent to the City attorney anonymously, although it appears that Welter's wife (a fellow police officer) and another officer had accessed Welter 's email account, printed them out, and then sent them to the City.  Upon learning that the City was investigating him for misconduct related to his use of LEADS, Welter and Seitz filed suit against the City alleging violations of the Federal Wiretap Act.  The plaintiffs also sued the two officers who accessed the email account under that Act, as well as the Stored Communications Act, the Computer Fraud and Abuse Act, and various state law claims.
The City filed a motion to dismiss the FWA count, arguing that the FWA does not authorize a cause of action against municipalities.  The City also argued that the plaintiffs did not adequately allege a "contemporaneous" interception as required by the Act, and that the plaintiffs failed to allege that the City knew the emails had been intercepted. The district court ruled in favor of the City, holding that the FWA does not authorize an action against municipalities.
On appeal, the 7th Circuit affirmed, finding that the FWA does not apply to governmental units by the clear language of the statute.  Although an individual may bring an action against an employee or an agent of a governmental unit for accessing an electronic communication without permission, no such claim can be brought against a governmental unit under that provision of the FWA. 


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