US Appeals Court Undermines Individual Privacy On Internet

by Glen Shapiro, LawAndTax-News.com, New York

10 August 2004

The First Circuit Court of Appeals at the end of July upheld a District Court decision 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, dealing a heavy blow to the cause of individual privacy on the Internet.

Bradford C. Councilman had been charged with conspiring to engage in conduct prohibited by various provisions of the Wiretap Act. The defendant was Vice-president, a shareholder and an employee of a firm called Interloc, which provided certain book dealer customers with an e-mail address among other services as their ISP. The defendant had configured the mail processing software so that all incoming email sent from Amazon.com, the defendant's competitor, was copied and sent to the defendant's mailbox as well as to the intended recipient's. The defendant and other Interloc employees routinely read the e-mails sent to its members seeking to
gain a commercial advantage. The indictment alleged that this behaviour amounted to a conspiracy to intercept the electronic communications, to intentionally disclose the contents of the intercepted communications, and to use the contents of the unlawfully obtained electronic communication.

In the District Court, the Defendant moved to dismiss the Indictment for failure to state an offense under the Wiretap Act, as the e-mail interceptions at issue were in "electronic storage," as defined in 18 U.S.C. § 2510(17), and could not be intercepted as a matter of law. The district court did not initially grant the motion to dismiss but, upon further briefing by the parties, granted the motion and dismissed the indictment. The district court found that the e-mails were in electronic storage and that, therefore, the Wiretap Act could not be violated because the requisite "interception" was lacking.

The court itself admitted: "it may well be that the protections of the Wiretap Act have been eviscerated as technology advances," and it seems necessary for the law to be revised. "By interpreting the Wiretap Act's privacy protections very narrowly, this court has effectively given Internet communications providers free rein to invade the privacy of their users for any reason and at any time," says Kevin Bankston, Electronic Freedom Foundation attorney and Equal Justice Works fellow. "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."

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