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. He was vice-president
of Interloc, a company which 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.
In June, to the alarm of privacy activists, a three judge panel
of the 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.
The Justice Department appealed, and 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, supporting the request.
This has now been granted and the July ruling withdrawn pending
the First Circuit's rehearing of the case, which will take place in
December.
"It may well be that the protections of the Wiretap Act have
been eviscerated as technology advances," the panel commented in
issuing the order.
"The First Circuit clearly understands the need to quickly
reconsider the court's earlier ruling, which raised significant
constitutional questions and threatened to disrupt the traditional
understanding of wiretap law," said Kevin Bankston, lawyer with the
EFF.
"Upon rehearing the case, the full First Circuit should
recognise that the original decision rewrote the field of internet
surveillance law in ways that Congress never intended," he
added.
