[Infowarrior] - Email and Cell Phone Privacy Threatened in Two Separate Court Cases

[Richard Forno]

EFF Battles Dangerous Attempts to Circumvent Electronic Privacy Law
Email and Cell Phone Privacy Threatened in Two Separate Court Cases

San Francisco - The Electronic Frontier Foundation (EFF) has filed  
friend-of-the-court briefs in two key electronic privacy cases that  
threaten to expand the government's spying authority.

In the first case, Bunnell v. Motion Picture Association of America  
(MPAA), EFF filed a brief with the 9th U.S. Circuit Court of Appeals  
arguing that federal wiretapping law protects emails from unauthorized  
interception while they are temporarily stored on the email servers  
that transmit them. This case was brought against the MPAA by the  
owners and operators of TorrentSpy, a search engine that let Internet  
users locate files on the BitTorrent peer-to-peer network. After a  
business dispute, one of TorrentSpy's independent contractors hacked  
into the company email server and configured it to copy and forward  
all incoming and outgoing email to his personal account and then sold  
the information to the MPAA. However, the federal district court ruled  
that because the emails were stored on the mail server for several  
milliseconds during transmission, they were not technically  
"intercepted" under the federal Wiretap Act. In its amicus brief filed  
Friday, EFF argues that this dangerous ruling is incorrect as a matter  
of law and must be overturned in order to prevent the government from  
engaging in similar surveillance without a court order.

"The district court's decision, if upheld, would have dangerous  
repercussions far beyond this single case," said EFF Senior Staff  
Attorney Kevin Bankston. "That court opinion -- holding that the  
secret and unauthorized copying and forwarding of emails while they  
pass through an email server is not an illegal interception of those  
emails -- threatens to wholly eviscerate federal privacy protections  
against Internet wiretapping and to authorize the government to  
conduct similar email surveillance without getting a wiretapping order  
from a judge."

The second case concerns a request by the Department of Justice (DOJ)  
to a federal magistrate judge in Pennsylvania for authorization to  
obtain cell phone location tracking information from a mobile phone  
provider without probable cause. The magistrate instead demanded that  
the DOJ obtain a search warrant based on probable cause, and the DOJ  
appealed that decision to the federal district court in the Western  
District of Pennsylvania. In an amicus brief filed Thursday, EFF urged  
the district court to uphold the magistrate's ruling and protect cell  
phone users' location privacy.

"Location information collected by cell phone companies can provide an  
extraordinarily invasive glimpse into the private lives of cell phone  
users. Courts have the right under statute -- and the duty under the  
Fourth Amendment -- to demand that the government obtain a search  
warrant based on probable cause before seizing such sensitive  
information," said Bankston. "This is only the latest of many cases  
where EFF has been invited to brief judges considering secret  
surveillance requests that aren't supported by probable cause. We hope  
this court recognizes the serious Fourth Amendment questions that are  
raised by warrantless access to cell phone location information and  
affirms the magistrate's denial of the government's surveillance  
request."

The American Civil Liberties Union (ACLU), the ACLU-Foundation of  
Pennsylvania, and the Center for Democracy and Technology (CDT) also  
joined EFF's brief.

For the full amicus brief in Bunnell v. MPAA:
http://www.eff.org/files/filenode/Bunnell_v_MPAA/BunnellAmicus.pdf

For the full amicus brief in the cell phone records case:
http://www.eff.org/files/filenode/celltracking/LenihanAmicus.pdf

For more on cell phone tracking:
http://www.eff.org/issues/cell-tracking

Contacts:

Kevin Bankston
Senior Staff Attorney
Electronic Frontier Foundation
bankston at eff.org

Marcia Hofmann
Staff Attorney
Electronic Frontier Foundation
marcia at eff.org

Matt Zimmerman
Senior Staff Attorney
Electronic Frontier Foundation
mattz at eff.org