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
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."
The statute contains no explicit indication that Congress intended to
exclude communications in transient storage from the definition of
"electronic communication," and, hence, from the scope of the Wiretap
Act. Councilman, without acknowledging it, looks beyond the face of the
statute and makes an inferential leap. He infers that Congress
intended to exclude communications in transient storage from the definition
of "electronic communication," regardless of whether they are in the
process of being delivered, simply because it did not include the term
"electronic storage" in that definition. This inferential leap is not a
plain text reading of the statute.
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.
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