Court overturns email tapping case

Out-Law News | 15 Aug 2005 | 9:24 am | 2 min. read

The US Court of Appeals for the First Circuit on Thursday overturned a landmark ruling that it was not a violation of criminal wiretap laws for the provider of an email service to monitor the content of users' incoming messages without their consent.

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,, 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.