According to commentators, unless overturned, the landmark
ruling will have a serious effect on e-mail privacy in the US.
The case was brought by the Justice Department against Bradford
Councilman, a seller of rare and used books. His company, Interloc,
of which he was vice-president, provided an e-mail service to
certain book dealer customers. However, Councilman had configured
the mail processing software so that all incoming e-mail sent to
dealers from Interloc's biggest competitor, Amazon.com, was copied
and sent to Councilman's mailbox as well as to the intended
recipient's.
The US Wiretap Act prohibits unauthorised interceptions of
communications. The main issue in the case was whether Councilman's
actions constituted an intercept.
To the great alarm of privacy activists, in July a three judge
panel of the Massachusetts First Circuit Court of Appeals upheld
the ruling of a lower court, concluding that there was no breach of
the Act, because the tapping took place while the messages were
stored on Councilman's computer, rather than being continuously in
motion, as is the case with traditional telephone calls.
According to CNET News.com, the Justice Department has requested
an appeal of the ruling before the entire First Circuit Court of
Appeals, warning that the decision could allow for the monitoring
of e-mail and other electronic communications by ISPs or even
criminals.
Privacy groups, including the Electronic Frontier Foundation
(EFF), the Center for Democracy and Technology, the Electronic
Privacy Information Center and the American Library Association,
filed their own "friend-of-the-court" brief last week, supporting
the request.
"This approach rewrites the basic principles of internet
surveillance law," said the filing. "Because many surveillance
devices can be installed in a way that obtains communications while
in nanosecond storage, the panel opinion threatens to reduce the
Wiretap Act to almost a nullity."
"This court decision has repercussions far beyond a single
criminal prosecution," said EFF lawyer Kevin Bankston.
"If private service providers like Councilman can avoid the
warrant requirements of the Wiretap Act by a technicality in the
way the messages are transmitted, it follows that the government
will also be able to monitor our communications without having to
ask a judge for a wiretap order," he added.
