The First Circuit, sitting en banc, reversed a panel determination. As you may recall:
The [panel] majority concluded that, because the definition of "wire communication" includes "electronic storage" but the definition of "electronic communication" does not, the Wiretap Act's prohibition on "intercept[ion]" does not apply to messages that are, even briefly, in "electronic storage."
After exploring various cannons of statutory construction it can’t rely on the plain text, and looks at the legislative history, and concludes that:
***the legislative history indicates that Congress included the electronic storage clause in the definition of "wire communication" provision for the sole reason that, without it, access to voicemail would have been regulated solely by the Stored Communications Act. Indeed, that is exactly what happened when Congress later removed the explicit reference to "electronic storage" from the definition of "wire communication" in the [Patriot Act]***
I don’t have time to go into the case-specific stuff (because this actually is a criminal appeal), but you can read our earlier coverage here. Orin Kerr is quoted and you can read his musings on the subject here. He will probably have more to say here.