10-1347 U.S. v. Szymuszkiewicz

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Wiretap Act
Sufficiency of the evidence

Where an employee directed all of his supervisor’s email messages to be forwarded to him, the evidence was sufficient to convict him under the Wiretap Act for intentionally intercepting an electronic communication.

“Szymuszkiewicz’s argument is based on the belief that Infusino’s computer did the forwarding after each email arrived there. The evidence permitted the jury to find, however, that every message to Infusino went through the IRS’s regional server in Kansas City, and that the server retained the message in its own files and dispatched two copies: one for Infusino and another for Szymuszkiewicz. Outlook’s default is for an email client to send all rules to the server, which implements them. Only a rule that cannot be executed fully by the server requires help from a client machine. Microsoft Corporation, E-Mail Rules Protocol Specification [MSOXORULE] §1.3.3 (2010). The prosecutor introduced a log from the Kansas City server showing that, when a message to Infusino arrived, the server sent a copy to Szymuszkiewicz within the same second; no action by Infusino’s computer was necessary. The log shows that the rule Szymuszkiewicz created was implemented on the server side (per Outlook’s norm), rather than the client side. The copying at the server was the unlawful interception, catching the message ‘in flight’ (to use Szymuszkiewicz’s preferred analogy).”

Affirmed.

10-1347 U.S. v. Szymuszkiewicz

Appeal from the United States District Court for the Eastern District of Wisconsin, Adelman, J., Easterbrook, J.

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