Privacy groups and Government appeal e-mail tapping case

According to commentators, unless overturned, the landmark ruling will have a serious effect on e-mail 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 e-mail service to certain book dealer customers. However, Councilman had configured the mail processing software so that all incoming e-mail sent to dealers from Interloc's biggest competitor, Amazon.com, 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 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.

According to CNET News.com, the Justice Department has requested an appeal of the ruling before the entire First Circuit Court of Appeals, warning that the decision could allow for the monitoring of e-mail 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, filed their own "friend-of-the-court" brief last week, supporting the request.

"This approach rewrites the basic principles of internet surveillance law," said the filing. "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."

"This court decision has repercussions far beyond a single criminal prosecution," said EFF lawyer Kevin Bankston.

"If private service providers like Councilman can avoid the warrant requirements of the Wiretap Act 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," he added.