Who is a “Party to the Communication” in a Network Intrusion?
Sections 2511(2)(c) and (d) permit any “person” who is a “party to the communication” to consent to monitoring of that communication. In the case of wire communications, a “party to the communication” is usually easy to identify. For example, either conversant in a two-way telephone conversation is a party to the communication. See, e.g., United States v. Davis, 1 F.3d 1014, 1016 (10th Cir. 1993). In a computer network environment, by contrast, the simple framework of a two-way communication between two parties may break down. When a hacker launches an attack against a computer network, for example, he may route the attack through a handful of compromised computer systems before directing the attack at a final victim. At times, the ultimate destination of the hacker’s communications may be unclear. Finding a “person” who is a “party to the communication”-other than the hacker himself, of course-can therefore be difficult. Because of these difficulties, agents and prosecutors should ado
