A case involving an email service provider who was absolved for monitoring users' incoming message content without their permission will be re-heard by the First U.S. Circuit Court of Appeals.
A three-judge panel of that court had earlier held that Bradford Councilman, the vice president of now-defunct InterLoc – a bookseller which also offered email services to members – was not liable under the Wiretap Act because Congress' intention, according to the panel ruling, was to put more restrictions on snooping wire and oral communications than electronic ones.
But a number of civil liberties organizations including the Electronic Frontier Foundation filed a brief in September asking the full appeals court to re-hear the case.
"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 EFF attorney Kevin Bankston, announcing the decision to re-hear the Councilman case. "Upon rehearing the case, the full First Circuit should recognize that the original decision rewrote the field of Internet surveillance law in ways that Congress never intended."
Both sides have 30 days from October 5 to submit briefs arguing their cases for the rehearing. Specifically, the full First Circuit Court asked both sides to stay within such issues as whether any conduct under consideration could be prosecuted under the Stored Communications Act and whether any other procedural ruling could prevent a prosecution in the case.
When the three-judge panel upheld Councilman in a 2-1 early July decision, Judge Kermit Lipez wrote a lengthy dissent in which he charged that nothing in Congress's legislative record showed it wanted to cut protection for electronic communications when it included "electronic storage" in the Wiretap Act definition of wire communication.
Lipez also spurned Councilman's argument that ordering InterLoc engineers to copy incoming member e-mails was legal under the Stored Communications Act. "Under Councilman's narrow interpretation of the Act," Lipez wrote, "the Government would no longer need to obtain a court-authorized wiretap order to conduct such surveillance. This would effectuate a dramatic change in Justice Department policy and mark a significant reduction in the public's right to privacy."
