Supplemental Brief filed by Amici in US v. Councilman

On December 8, 2004 the en banc Court will hear oral argument in US v. Councilman. 373 F.3d 197, 201 (1st Cir. 2004), withdrawn, 385 F.3d 793 (1st Cir. 2004), a case we have commented on here, here and here. This case involves internet privacy - and the panel's majority opinion has been widely and strongly criticized. Judge Torruella wrote the majority opinion, joined by Senior Judge Cyr, with Judge Lipez dissenting. In particular, the case involved whether intercepted e-mails were subject to the Stored Communications Act or to the Wiretap Act. The panel majority held the Wiretap Act did not cover the intercepts.

In granting rehearing en banc the First Circuit stated:

Although the parties can address other issues in their supplemental submissions, and the en banc court is free to consider all of the issues presented, the court specifically requests that the parties address the following questions:

1. Whether the conduct at issue in this case could have been additionally, or alternatively, prosecuted under the Stored Communications Act?

2. Whether the rule of lenity precludes prosecution in this case?

Oral argument is scheduled for 3:00 p.m. on December 8, 2004 in the en banc courtroom in the John Joseph Moakley United States Courthouse.

The court welcomes timely motions to file amicus briefs concerning any of the issues in this appeal.

An excellent Supplemental Brief was filed by Professor Orin Kerr on behalf of the Center for Democracy and Technology, The Electronic Frontier Foundation, The Electronic Privacy Information Center, The American Library Association, The American Civil Liberties Union, and the Center for National Security Studies as Amici Curiae in Support of the United States in favor of reversal.