Wiretapping and email

The legal protection for email has been expanded, just slightly. The full First Circuit Court of Appeals has overturned a First Circuit panel decision that allowed Bradford Councilman to monitor the content of his users' incoming email.

Councilman was vice president of Interloc, a company that ran an online service that listed rare and out-of-print books, and offered its customers an email at "interloc.com." (Interloc has become Albris.) In January 1998, Councilman directed employees to copy incoming email from Amazon.com to subscribers. A procmail script was used to copy those messages, without any notice to Interloc's users, into a mailbox that Councilman could read in an attempt to gain a commercial advantage.

In 2001, a grand jury charged Councilman with conspiracy to violate the Wiretap Act. This count was dismissed by district court, and the dismissal was affirmed by a panel hearing of the First Circuit Court last year, but the full court granted an en banc hearing which overturned the panel decision. The judgment has been vacated and the case has been remanded to the district court.

The case centers on whether email is an "electronic communication," or whether Congress meant to -- by exclusion -- exempt "communications in transient storage" from the Wiretap Act. The Electronic Communications Privacy Act (ECPA) of 1986 updated title 18 of the United States Code (the Wiretap Act), making it an offense to "intentionally intercept, endeavor to intercept, or procure any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication."

If email is considered an electronic communication, then it is considered protected under the ECPA. However, Councilman argued that email was not "electronic communication" when it was copied because it was "in storage" at the time.

The court has decided that Councilman's interpretation "is inconsistent with Congress's intent."

It's also worthwhile to note the court's comments on the Stored Communications Act, saying that "Councilman's conduct may appear to fall under the Stored Communications Act's main criminal provision," but that he would also fall under the provider exception, which says the Act "does not apply with respect to conduct authorized by the person or entity providing a wire or electronic communications service." The Stored Communications Act, according to the Court's decision, appears to establish "virtually complete immunity" for service providers in handling email on their systems.

However, the Stored Communications Act does not provide a "safe harbor" for Councilman, since the Wiretap Act has a much narrower service provider exception, which only allows interception as "necessary incident to the rendition of his service or to the protection of the rights or property of the provider of that service." Obviously, Councilman's actions do not fall within this definition.

The court concluded that "electronic communication" includes "transient electronic storage that is intrinsic to the communication process for such communications" and that "interception of an email message in such storage is an offense under the Wiretap Act."

Assuming this decision holds, the Councilman decision is a victory for users and protects email in transit -- whether that is "on the wire" or in temporary storage on a server awaiting delivery to its final destination -- granting email the same protection from interception and monitoring that is given to phone calls.