The full First U.S. Circuit Court of Appeals has been asked to review a previous ruling by a three-judge panel of that court, in which Bradford Councilman – vice president of now-defunct InterLoc, an out-of-print bookseller and e-mail service provider – did not violate federal wiretap law when he reputedly monitored the content of users' incoming e-mail.
The Justice Department has asked the full First Circuit Court to review the case, and they're getting backing from three of the biggest civil liberties guns in cyberspace.
"It's very important for Internet communication to protect online privacy," Electronic Privacy Information Center president Marc Rotenberg told TechNewsWorld. "The law that does that is the federal wirtetap law. The reading that the court gave to the federal wiretap law in this particular case is so narrow that it would make it much easier for law enforcement officials and others to get access to private communications."
Electronic Frontier Foundation attorney Kevin Bankston, whose group has filed a joint amicus brief in the case, said the three-judge panel decision would have repercussions far beyond one criminal prosecution if it were allowed to stand.
"The panel decision effectively rewrites the field of Internet surveillance law in ways that Congress never intended," Bankston said. "If private service providers like Councilman can avoid the Wiretap Act's criminal prohibition on interception 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. If the decision is allowed to stand, it will eliminate the Wiretap Act as the primary curb against private and government snooping on the Internet."
The EFF amicus was filed jointly with the Center for Democracy and Technology, EPIC, and the American Library Association.
"The Wiretap Act is the primary source of legal protections against government snooping online," the brief said. "The panel’s approach guts those protections. It would allow federal, state, or local law enforcement agents to install monitoring devices that impose the functional equivalent of a wiretap without needing to satisfy the Wiretap Act.
"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," the brief continued. "Congress plainly did not intend such a result… The Wiretap Act was extended to the Internet to regulate continuous intrusions over a period of time…the panel opinion largely nullified a statute that Congress has relied upon to protect e-mail privacy for almost two decades.
It probably depends on what your definition of "plain" or "plainly" is. Writing for the 2-1 three-judge panel majority July 1, Judge Juan Toruella said the language of the Wiretap Act "makes clear" Congress's plain intention was to give lesser protection to electronic than to oral and wire communications. " Moreover, at this juncture, much of the protection may have been eviscerated by the realities of modern technology," Toruella wrote. "We observe… that the language may be out of step with the technological realities of computer crimes. However, it is not the province of this court to graft meaning onto the statute where Congress has spoken plainly."
Councilman arranged his e-mail service to copy all incoming e-mail from competitor Amazon.com secretly, forwarding the e-mails to his own inbox. Justice accused him of intercepting e-mail in transit, which would violate criminal wiretap laws. Rotenberg said the three-judge panel treated those secretly copied and forwarded e-mails as stored rather than in-transit e-mails "because there's a moment when it's on a server that it becomes accessible."
