Major Wiretap Act decision: CA1 rules that the contemporaneous requirement for interception is not met by being "functionally" contemporaneous --- taking lots of screenshots of another's computer screen can't violate Wiretap Act. Some thoughts. /1 media.ca1.uscourts.gov/pdf.opinions/1… 
In the case, an employer set up surveillance on an employee's work computer when they suspected misconduct. The surveillance program, , the screen-capture software System Surveillance Pro (SSP), took a screenshot of the computer when certain keywords typed on it. /2
SSP caught the employee viewing child porn at work. Employee was fired and prosecuted, and now brought a civil suit alleging among other things a wiretap act violation for covertly installing the monitoring software. CA1 holds screenshots based on keywords not an intercept. /3
Reading over the decision, though, I find myself perplexed. What does the court think counts as the required "acquisition" of the contents? That should be the moment a copy of the message is created, not when it is read. So if the screenshot software is copying when msg sent, /4
that would seem to be a classic case of the interception being contemporaneous. But it's not clear to me if that is how the SSP was programmed, or what the court is thinking. At p26, the court seems to be thinking that once communication is stored, can't also be intercepted. /5
But that's wrong, as I explained in amicus brief for @EFF, @CenDemTech, et al back in 2004 (!) in the Councilman case when it went en banc, also in the CA1. Deja vu all over again, it seems. epic.org/privacy/counci…
I should add that I have since advocated the functional approach in the LaFave Crim Pro treatise. From the treatise, Section 4.6(b).
I'll have to think more about this case, and read the briefs from the parties, but right now I'm not sure it's right -- and it may be importantly wrong, in a way that interestingly mirrors the CA1 Councilman panel decision that they they overturned en banc in a muddled decision.
Finally, note the different analysis in O'Brien v. O'Brien under the similar language of Florida's Wiretap Act. scholar.google.com/scholar_case?c…
Reading over the case again, I feel a bit better about it. After rejecting the "functional" approach, the court then rules against the employee mostly on the ground that he didn't put in enough evidence about what the surveillance tool did. He needed an expert witness, ct says,
to testify about the technical function of the SSP. So the court seems to be leaving open that the tool did intercept communications; it's just that the plaintiff didn't put forward expert evidence of it to justifying going to trial on this.
