Privacy groups had argued that, unless reversed, the ruling
would have a serious effect on email 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 email service to
certain book dealer customers. However, Councilman had configured
the mail processing software so that all incoming email 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 2004 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.
The indictment against Councilman was therefore dismissed.
The US Justice Department requested an appeal of the ruling
before the entire First Circuit Court of Appeals, warning that the
decision could allow for the monitoring of email 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,
supported the request.
On Thursday, by a majority of 5 – 2, the Court of Appeals
overturned the ruling, making it clear that even though emails are
stored in computer memory during transmission, it is still criminal
to intercept those messages without the user's permission or a
court-issued wiretap order.
The Wiretap Act doesn't apply merely to communications that are
tapped from the wire, but also covers communications that are in
"transient electronic storage that is intrinsic to the
communication process," said the majority opinion of the Court,
written by Judge Kermit Lipez.
Dissenting, Judge Juan Torruella called the majority ruling an
“unfortunate act of judicial legislation that no amount of
syllogisation can camouflage.”
In his view, “the government has attempted to fish with a net
that has holes in it and is thus in need of repair.”
He argued that the solution lay not in putting words in the
mouth of Congress, but in privacy agreements between email
providers and their customers.
Privacy groups, however, were pleased with the decision.
According to Kevin Bankston, attorney with the EFF, “Today's
decision reaffirms that email providers can't snoop on their
customers' incoming messages any time they like, and that the law
protects the privacy of your email just as much as it protects the
privacy of your phone calls."
"The First Circuit correctly recognised that when law
professors, privacy activists, the Department of Justice, and the
drafters of the law all agree on what the wiretap statute means, as
was the case here, they probably know what they're talking about,"
he added.
The indictment against Councilman has been reinstated, and will
now return to the District Court for possible trial.
