[ISN] E-mail wiretap case can proceed, court says

[InfoSec News]

http://news.com.com/E-mail+wiretap+case+can+proceed%2C+court+says/2100-1028_3-5829228.html

By Declan McCullagh 
Staff Writer, CNET News.com
August 11, 2005

In a closely watched case governing Internet privacy, a federal
appeals court has reinstated a criminal case against an e-mail
provider accused of violating wiretap laws.

The 1st Circuit Court of Appeals, in a 5-2 vote, ruled on Thursday
that an e-mail provider who allegedly read correspondence meant for
his customers could be tried on federal criminal charges.

That decision reverses a 2-1 vote by a three-judge panel last year
that raised alarms among civil libertarians and even sparked a flurry
of efforts in Congress to rewrite wiretapping law in response.

Privacy advocates had warned that if last year's ruling by the 1st
Circuit was left untouched, it could usher in more e-mail
eavesdropping by the government. In a rare meeting of minds, the U.S.  
Justice Department also urged that the case not be dismissed. Lawyers
for the defense, on the other hand, said that a broad reading of
wiretapping law would open the door for prosecutions of Internet
service providers performing normal business practices.

The case deals with an indictment of Bradford Councilman, formerly
vice president of online bookseller Interloc, which is now part of
Alibris.

Interloc provided some of its customers, typically dealers of rare or
used books, with e-mail addresses ending in "@interloc.com."  
Councilman allegedly ordered the creation of a Procmail script, which
saved copies of inbound messages from Amazon.com sent to those
specialty book dealers, in hopes of gaining commercial intelligence.  
(Procmail is a popular Unix utility used for sorting and delivering
incoming e-mail.)

At the heart of the case is whether such e-mail duplication violates
the labyrinthine definitions embedded in the federal Wiretap Act,
which governs the interception of "electronic communications." Because
the law's definition can be interpreted to not cover e-mail stored in
a mail queue, even temporarily, Councilman's lawyers argued that his
alleged actions did not violate the law.

In Monday's majority opinion written by Judge Kermit Lipez, the First
Circuit disagreed. The judges said that the "statute contains no
explicit indication that Congress intended to exclude communications
in transient storage from the definition."

"This is an important victory for online privacy," said Marc
Rotenberg, director of the Electronic Privacy Information Center,
which submitted a brief in the case. "It establishes a high standard
for the interception of Internet communications even when they're in
temporary storage."

A spirited dissent by Judge Juan Torruella accused his colleagues of
judicial activism. "It is Congress' failure to provide (specific)  
language in its definition of 'electronic communication' that incites
the majority into engaging in what I believe to be an unfortunate act
of judicial legislation," he wrote.
 
Previous Next "Our interpretation of the statute does not require that
we assume that Congress contemplated the complete evisceration of the
privacy protections for e-mail," Torruella wrote. Instead, he and a
fellow dissenter said, privacy could be guaranteed by a simple
contract between e-mail providers and their customers.

It's not clear what happens next. Councilman's attorneys at the Boston
firm of Good & Cormier could not be reached for comment on Thursday.  
Their options include seeking Supreme Court review or resuming their
arguments after a trial is held.

In a statement late Thursday, Rep. Jay Inslee, D-Wash., applauded the
ruling. If last year's ruling had not been overturned, Inslee said,
Internet service providers "could read consumers' e-mails more freely,
and law enforcement could abide by fewer privacy protections in order
to intercept such communications." Inslee co-sponsored one of the
bills introduced as a response to the earlier court decision.

Orin Kerr, a law professor at George Washington University who also
worked on a brief in this case, predicts that Congress may still move
forward with some of its proposals to amend the Wiretap Act. (Sen.  
Patrick Leahy, a Vermont Democrat, even joined one of the
friend-of-the-court briefs in this case.)

"The opinion is so narrow that it leaves work for Congress to do,"  
Kerr said.

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