[18 U.S.C. 2510(4) (1994).] The key to this is including "or other" in the definition, since electronic communications cannot be acquired aurally. Even though electronic communications are now included within the ECPA's interception clause, the range of protection afforded by the prohibition against interception has been narrowly interpreted by one of the few courts to address the issue.An example of this lies in the decision of the 5th Circuit Court in the case of Steve Jackson Games, Inc. v. United States Secret Service, [36 F.3d 457 (5th Cir. 1994).] In this case, the court decided whether or not the Secret Service's seizure of a computer that was used to operate an electronic bulletin board system, constituted an "intercept" of the stored but unread e-mail contained on the system. Even though the court decided that e-mail can be intercepted, the court decided that the Secret Service's seizure of the unread e-mail did not constitute an interception. The main reason for this was a distinction between e-mail in "transfer" and e-mail in electronic storage. The use of the word "transfer" in the definition of "electronic communication," and its omission in that definition of the phrase "any electronic storage of such communication" says that Congress did not intend for "intercept" to apply to "electronic communications" when those communications are in "electronic storage." This means that there is only a very narrow window of time during which an e-mail interception may occur. This would be the time between the time an e-mail message is sent and the time it is saved to any location designated as storage. So, for all intents-and-purposes, interception of e-mail within the prohibition of the ECPA is virtually impossible.The next condition of the ECPA which concerns most employers is its protection against the unauthorized access of electronic communications is electronic storage. [18 U.S.C. 2701 (1994).] E-mail in electronic s...
