lause if it is determined that the activity affects interstate commerce. In Perez v. United States [402 U.S. 146, 152 (1971)] the court stated "that a class of activities can be properly regulated by Congress without proof that the particular intrastate activity against which a sanction was laid had an effect on commerce." Also, in Wickard v. Filburn [317 U.S. 111, 125 (1942)], the observation was made that "local activity may be reached by Congress if it exerts a "substantial economic effect on interstate commerce, irrespective of whether such effect is indirect." Because the Interstate Commerce Clause could pre-empt this theory, the theory appears to have no basis and would be a shaky defense in a court of law.The second theory for exclusion rests upon the ECPA's clear exemption of system providers from its prohibition against access and disclosure of stored electronic communications. [18 U.S.C. 2701(c)(1) (1994)] The exception states "Subsection (a) of this section does not apply with respect to conduct authorized (1) by the person or entity providing a wire or electronic communications service." Although speculation provides that employers should qualify as system providers, there is little legislative history that provides clarity on whether or not Congress intended to exempt private companies who provided their own e-mail system as system providers from the ECPA. Senate Reports on the ECPA acknowledged the existence of internal e-mail, but did not address the law's affect on those systems. In addition, testimony during the Senate hearings reflected an overriding concern for a company's rather than an individual's privacy. Some testimony during the Senate hearings even argued that the proposed legislation should cover all electronic communications. Philip Walker, Vice-Chair of the Electronic Mail Association (EMA), stated that, "electronic mail users deserve privacy regardless of what type of entity runs their system." [...
