Major e-mail providers are rushing to deny it, but privacy advocates fear a potential broadening of business and government snooping into your e-mail. That's because a three-judge panel of the 1st U.S. Circuit Court of Appeals has held that Congress meant to put more restrictions on poking into wire and oral communications than electronic ones.
The case in question involved Bradford C. Councilman, a vice president of a now-defunct company, InterLoc, which sold out-of-print books and also provided e-mail services to its members. Councilman was charged with violating the federal Electronic Communications Privacy Act – also known as the Wiretap Act – when he allegedly ordered InterLoc engineers to make copies of all incoming member mail from online bookselling giant Amazon.com.
A federal judge threw out the charge on grounds that Councilman's order did not constitute intercepting electronic communications. The federal government appealed the ruling.
"The Wiretap Act's purpose was, and continues to be, to protect the privacy of communications," Judge Juan Toruella wrote for the 2-1 appellate panel majority. "We believe that the language of the statute makes clear that Congress meant to give lesser protection to electronic communications than wire and oral communications. Moreover, at this juncture, much of the protection may have been eviscerated by the realities of modern technology. 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."
Spokesmen for two of the nation's largest e-mail providers, EarthLink and America Online, told reporters their companies had no intention of reading their customers' e-mail without their customers' okays.
The Electronic Frontier Foundation wasn't buying it, blasting the 1st Circuit Court panel's ruling for what it called dealing a "grave blow" to Internet communications privacy.
"By interpreting the Wiretap Act's privacy protections very narrowly," staff attorney Kevin Bankston said in a statement, "this court has effectively given Internet communications providers free rein to invade the privacy of their users for any reason and at any time. This decision makes clear that the law has failed to adapt to the realities of Internet communications and must be updated to protect online privacy."
But others fear an interceptor slightly more insidious than Internet or other businesses – the U.S. government. "The decision potentially creates a loophole for law enforcement access to email, and exposes the inadequacy of current law against ISPs' use of their customers' e-mail for their own business purposes and without notice or consent," said the Center for Democracy and Technology in a statement on their Website.
Judge Kermit Lipez, in a voluminous dissenting opinion, said nothing in the legislative record showed Congress wanted to cut the protection for electronic communications when it included "electronic storage" in the Act's definition of wire communication. He also rejected Councilman's contention that ordering his then-engineers to copy the incoming member e-mails was lawful 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."
