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Email snoop case can proceed, says US court
To tap or not to tap

By Declan McCullagh

Published: Friday 12 August 2005

In a closely watched case governing internet privacy, a federal appeals court has reinstated a criminal case against an email provider accused of violating wiretap laws.

The 1st Circuit Court of Appeals, in a five to two vote, ruled on Thursday that an email provider who allegedly read correspondence meant for his customers could be tried on federal criminal charges.

That decision reverses a two to one vote by a three-judge panel last year that raised alarms among civil libertarians and even sparked a flurry of efforts in Congress to rewrite wiretapping law in response.

Privacy advocates had warned that if last year's ruling by the 1st Circuit was left untouched, it could usher in more email eavesdropping by the government. In a rare meeting of minds, the US Justice Department also made noises for the case not to be dismissed. Lawyers for the defence, on the other hand, said a broad reading of wiretapping law would open the door for prosecutions of internet service providers performing normal business practices.

The case deals with an indictment of Bradford Councilman, formerly vice president of online bookseller Interloc, which is now part of Alibris.

Interloc provided some of its customers - typically dealers of rare or used books - with email addresses ending in "@interloc.com". Councilman allegedly ordered the creation of a Procmail script, which saved copies of inbound messages from Amazon.com sent to those specialty book dealers, in the hope of gaining commercial intelligence. (Procmail is a popular Unix utility used for sorting and delivering incoming email.)

At the heart of the case is whether such email duplication violates the labyrinthine definitions embedded in the federal Wiretap Act, which governs the interception of "electronic communications". Because the law's definition can be interpreted to not cover email stored in a mail queue, even temporarily, Councilman's lawyers argued his alleged actions did not violate the law.

In Monday's majority opinion written by Judge Kermit Lipez, the First Circuit disagreed. The judges said the "statute contains no explicit indication that Congress intended to exclude communications in transient storage from the definition".

Marc Rotenberg, director of the Electronic Privacy Information Center, which submitted a brief in the case said: "This is an important victory for online privacy. It establishes a high standard for the interception of internet communications even when they're in temporary storage."

A spirited dissent by Judge Juan Torruella accused his colleagues of judicial activism. "It is Congress' failure to provide [specific] language in its definition of 'electronic communication' that incites the majority into engaging in what I believe to be an unfortunate act of judicial legislation," he wrote.

"Our interpretation of the statute does not require that we assume that Congress contemplated the complete evisceration of the privacy protections for email," Torruella wrote. Instead, he and a fellow dissenter said privacy could be guaranteed by a simple contract between email providers and their customers.

It's not clear what happens next. Councilman's attorneys at the Boston firm of Good & Cormier could not be reached for comment on Thursday. Their options include seeking Supreme Court review or resuming their arguments after a trial is held.

In a statement late on Thursday, Representative Jay Inslee applauded the ruling. If last year's ruling had not been overturned, Inslee said, internet service providers "could read consumers' emails more freely, and law enforcement could abide by fewer privacy protections in order to intercept such communications". Inslee co-sponsored one of the bills introduced as a response to the earlier court decision.

Orin Kerr, a law professor at George Washington University who also worked on a brief in this case, predicts Congress may still move forward with some of its proposals to amend the Wiretap Act. (Senator Patrick Leahy, a Vermont Democrat, even joined one of the friend-of-the-court briefs in this case.)

Kerr said: "The opinion is so narrow that it leaves work for Congress to do."

Declan McCullagh writes for CNET News.com