(18 U.S.C. sec. 2510(1).)  The old law required that an interception of awire communication be an aural acquisition of the communication.  (18 U.S.C.sec. 2510(4).)  Being "aural," the communication must be "heard."Therefore, a computer communication may come under the old law while beingtransmitted.  After a caller's message is "sent" on a remote computersystem, the message is then stored within the computer's system.  Thecommunication's conversion into computer stored data, thus no longer intransmission until retrieved, takes the communication out of the oldstatutory protection.     "Eighteen years ago ... Congress could not appreciate - or in somecases even contemplate - [today's] telecommunications and computertechnology...."  (132 Cong. Rec. S7992 (daily ed. June 19, 1986) (statementof Sen. Leahy).)CALIFORNIA'S INVASION OF PRIVACY AND WIRETAP STATUTE     California's "invasion of privacy" and wiretap statutes (Cal. PenalCode sec. 630 et seq.), appears to provide state protection for BBSs.California Penal Code sec. 637 reads as:     Every person not a party to a telegraphic or telephonic     communication who willfully discloses the contents of a     telegraphic or telephonic message, or any part thereof, addressed     to another person, without the permission of such person, unless     directed so to do by the lawful order of a court, is punishable     by imprisonment in the state prison, or in the count jail not     exceeding one year, or by fine not exceeding five thousand     dollars ($5000), or by both fine and imprisonment.     Again, the question here would be whether "telegraphic or telephonicmessages" include computer communications via modem where a transmittedmessage is subsequently stored within a computer awaiting retrieval by itsintended recipient.  Again, the storage of the data takes the computercommunications out of the statute.  When the statute was passed, theCalifornia legislature, much like the Congress, could not foresee thetechnological advances in computer communications.     It should be noted that Assemblywoman Moore introduced legislation in1985 that would amend have the California state constitution to explicitlyprovide state constitutional privacy protection for remote computingservices and their stored information.  However, nothing has come out ofthis.  Aside from political reasons for the lack of further action is onepossible legal consequential argument against the amendment may be ifcomputer privacy protection is specified in the state constitution, morelitigation may result to tie up the courts in cases deciding whether or notthere is privacy protection for other unspecified matters.  Although,overall, the California state constitution is much more specific than theUnited States Constitution, it may be best to not be any more specific withregard to privacy.PROTECTION FOR U.S. MAIL     Statutory U.S. Mail protection provides a suggestion for statutoryprovisions of privacy protection for E-Mail deposited in electroniccommunication systems.  The unauthorized taking out of and examining of thecontents of mail held in a "depository for mail matter" before it isdelivered to the mail's intended recipient is punishable by fine,imprisonment, or both.  (18 U.S.C. sec. 1702.)                           SOLUTION - THE NEW LAW     There are two methods towards a solution:  (1) court decisions; and (2)new legislated privacy protection.COURT DECISIONS     Courts may have chosen to read computer communications protection intothe old federal wiretap statute or into existing state law.  However, theywere reluctant to do so.  Courts "are in no hurry to [revise or make new lawin this area] and some judges are openly asking Congress for help....[F]ederal Appeals Court Judge Richard Posner in Chicago said Congress neededto revise current law, adding that 'judges are not authorized to amendstatutes even to bring them up-to-date.'"  (Cohodas, Nadine, "Congress Racesto Stay Ahead of Technology," Congressional Quarterly Weekly Report, May 31,1986, p. 1233.)NEW STATUTE     Last October 21, 1986, President Reagan signed the ElectronicCommunications Privacy Act of 1986 amending the federal wiretap law.  Thenew Act (P.L. 99-508) would not take immediate effect until three monthsafter the signing - presumably January 21, 1986.  (18 U.S.C. secs. 111 and202.)     When the new law does take effect, it would first provide privacyprotection for any     'electronic communication' ... [by] any transfer of signs,     signals, writing, images, sounds, data or intelligence of any     nature transmitted in whole or in part by a wire, radio,     electromagnetic, photoelectronic or photooptical system that     affects interstate or foreign commerce...."(18 U.S.C. sec. 2510(10).)     Second, and more importantly for this discussion, ECPA would protect"stored wire and electronic communications," i.e. E-Mail stored and backedup on disk or tape on an electronic computer communication system.  (18U.S.C. sec. 2701(a)(1) and (2).)  The legislation makes it a federalcriminal offense to break into any electronic system holding copies ofmessages or to exceed authorized access to alter or obtain the storedmessages.  (Ibid.)     The legislation would protect electronic computer communication systemsfrom law enforcement invasion of user E-Mail without a court order.  (18U.S.C. sec. 2703.)  Although the burden of preventing invasion of the E-Mailis placed on the subscriber or user of the system, the government must givehim notice allowing him fourteen days to file a motion to quash a subpoenaor to vacate a court order seeking disclosure of his computer data.  (18U.S.C. sec. 2704(b).)  However, the government may give delayed notice whenthere are exigent circumstances as listed by the Act (18 U.S.C. sec. 2705.)     The legislation gives a civil cause of action to the provider oroperator, subscriber, customer or user of the system aggrieved by aninvasion of private material stored in the system in violation of ECPA.  (18U.S.C. sec. 2702; see also 18 U.S.C. sec. 2520.)  If the provider oroperator has to disclose information stored on his system due to a courtorder, warrant, subpoena, or certification under ECPA, there can be no causeof action against him by any person aggrieved by such disclosure.  (18U.S.C. sec. 2703(e); see also sec. 2702(b).)     The electronic communications, under this new Act, must be sent by asystem that "affects interstate or foreign commerce."  (18 U.S.C. sec.2510(12).)  The "electronic communications" may practically be limited toelectronic communications sent by common carrier telephone lines.     There may be some question as to whether or not ECPA is confined tocommercial systems and does not cover user-operated bulletin board systems.That would be similar to arguing the old federal wiretap law was confined tolong distance communications and not to local telephone calls.  The Housereport (H.R. No. 647, 99th Cong. (1986)), indicates user-operated BBSs areintended to be covered by the Act.  The House noted a difference betweencommercial subscription systems and user-operated BBSs readily accessible bythe public.  However, it also noted the different levels of security foundon user-operated BBSs, i.e. the difference between system areas containingprivate electronic mail and other areas containing public information.Electronic communications that the operator attempts to keep confidentialwould be protected by ECPA, while there would be no liability for access tofeatures configured to be readily accessible by the general public.Language in the Act also refers to "the person or entity providing the wireor electronic communication service."  Such language may be seen to indicatethe inclusion of individuals who operate a BBS.  (18 U.S. secs. 2701(c)(1)and 2702(a)(1) and (b).)  Additionally, a remote computing service wasdefined in the Act as an electronic communications system that providescomputer storage or processing services to the public.  (18 U.S.C. sec.2710(2).)  This would certainly be applicable to a user-operated BBS thatis easily accessible to public with the simple dialing of a telephone numberby a modem-equipped computer.  On the political side, Senator Leahy, aprincipal sponsor of the Act was reported to have been "soliciting [usersand operators' of BBSs] comments and encourage sensitivity to the needs ofBBS's in the legislation....  They are ... willing to listen to our side ofthings."  (BBSLAW02.MSG, dated 07/24/85, information from Chip Berlet,Secretary, National Lawyers Guild Civil Liberties Committee, transmitted byPaul Bernstein, SYSOP, LAW MUG, Chicago, Illinois 312/280-8180, regardingFederal Legislation Affecting Computer Bulletin Boards, deposited on TheLegacy Network 213/553-1473.)                                 CONCLUSION     Electronic mail stored on computer communication systems have FourthAmendment constitutional privacy protection.  Unfortunately, before theElectronic Communications Privacy Act of 1986, such protection was notarticulated by federal or state statutory guidelines.  Case law also didnot provide any helpful guidance.  The peculiarities of computers andcomputer storage posed problems which were not addressed by the old wiretaplaws.  They were also problems overwhelmed by constitutional privacy law asdefined by the United States Supreme Court.  A legislative solution wasrequired and was provided for by ECPA.     [For more information on ECPA, see 132 Cong. Rec. H8977 (daily ed.October 2, 1986) or "Major Provisions of 1986 Electronic Privacy Act,"Congressional Quarterly Weekly Report, October 11, 1986, 2558.]