[e-privacy] Fw: [CSIG] Appeals Court Votes to Revisit E-Mail Interception Case

Sun Oct 10 11:40:47 CEST 2004

Begin forwarded message:

Date: Sat, 9 Oct 2004 13:41:25 +0200
From: "Alessandro Monteleone" <alessandromonteleone at libero.it>
To: <centroinformaticagiuridica at yahoogroups.com>
Subject: [CSIG] Appeals Court Votes to Revisit E-Mail Interception Case

The U.S. Court of Appeals for the First Circuit has voted to rehear its
recent decision that that a company did not violate federal wiretap law
when
it accessed its customers' e-mail to view messages sent to them by a
rival
company.  The court will review a panel's 2-1 ruling in July that an
electronic communication is not "intercepted"
if the communication is accessed while it is in temporary storage.

This case involved an online literary clearinghouse that paired rare and
used book dealers with book buyers.  At the direction of Bradford
Councilman, a high level officer of the company, a clearinghouse
employee
wrote a revision to the mail processing code to intercept, copy, and
store
all incoming messages from Amazon.com before they were delivered to and
read
by the intended recipients. Councilman and other clearinghouse employees
accessed thousands of e-mails this way to gain a commercial advantage.

The law at issue in this case involves the 1986 amendments to federal
wiretap law.  Prior to the amendments, only wire and oral communications
were protected from interception under the Wiretap Act.
The amendments extended protections against interception to electronic
communications, and also sought to establish legal standards for access
to
e-mail in the possession of a service provider.  The changes created two
categories of electronic communications -- those "in transit," which
enjoy
relatively generous protection under the law, and those "in storage,"
which
receive a lesser degree of legal protection.  The categories that
resulted
from the amendments were viewed as complimentary efforts to protect the
privacy of electronic communications.  The "tiering" of communications
resulted more from the effort to address specific concerns -- such as
extending protections to electronic communications and creating
safeguards
for stored communications -- than to formally categorize the privacy
protection for each type of information.

In July, however, the First Circuit panel determined that the plain
language
of the law showed that Congress did not intend for the wiretap law's
interception provisions to apply to electronic communications in
electronic
storage.  The court found that when the clearinghouse obtained the
e-mails,
the messages were in temporary storage in a computer system.  The panel
noted that the parties had stipulated that the e-mails were not affected
while they were transmitted through wires or cables between computers. 
In
light of these findings, the panel determined that the e-mails were not
in
transit and subject to interception, but were instead stored
communications.
Because no "intercept" occurred, the panel held that the Wiretap Act
could
not have been violated.

EPIC joined three other civil liberties groups to file an amicus brief
last
month encouraging the First Circuit to review the controversial ruling. 
The
brief, filed by the Center for Democracy and Technology and joined also
by
the Electronic Frontier Foundation and the American Library Association,
argued that the panel's decision failed to recognize the intent of
Congress
to protect the privacy of electronic communications, and creates serious
constitutional questions under the Fourth Amendment guarantee against
unreasonable search and seizure.

The decision of the three-judge panel in United States v. Councilman:

       http://www.ca1.uscourts.gov/pdf.opinions/03-1383-01A.pdf

The amicus brief filed by the Center for Democracy and Technology, EPIC,
Electronic Frontier Foundation, and American Library
Association:

      http://www.cdt.org/wiretap/20040902cdt.pdf

The order for rehearing en banc:

      http://www.epic.org/redirect/councilman.html

For more information about electronic surveillance, see EPIC's
Wiretapping
Page:

       http://www.epic.org/privacy/wiretap

Alessandro Monteleone
http://www.dataprotection.it 

Nella  mailing  list  del  CSIG  l'autore  dei  contributi  inviati  si 
 assume
personalmente  ogni  responsabilit_   derivante  dal  contenuto   degli 
stessi,
manlevando  altres_  il  moderatore da  ogni  conseguenza  che gliene  
potrebbe
derivare. Il  moderatore mantiene  tutte le  altre prerogative  proprie
del suo ruolo.  Le e-mail di questa lista   ed i  loro  contenuti sono
riservati  ai soli  iscritti alla mailing; non  ne _ consentita la 
comunicazione ai non  iscritti,
essendo a tutti gli effetti di legge equiparate alla corrispondenza
privata.

Per annullare l'iscrizione a questo gruppo, manda una mail
all'indirizzo: 
centroinformaticagiuridica-unsubscribe at yahoogroups.com 
Link utili di Yahoo! Gruppi  

<*> Per andare all'homepage del gruppo vai alla pagina:
    http://it.groups.yahoo.com/group/centroinformaticagiuridica/

<*> Per annullare l'iscrizione al gruppo scrivi a:
    centroinformaticagiuridica-unsubscribe at yahoogroups.com

<*> L'utilizzo da parte tua di Yahoo! Gruppi _ soggetto alle:
    http://it.docs.yahoo.com/info/utos.html

-- 
Benedetta Giovannetti            | Q: Why is Christmas just like a
GPG Key Id = F6AE00CD            | day at the office?
fingerprint = D83F A951 3377 FF9F| A: You do all of the work and the fat
04BA  5A59 A175 BD6E F6AE 00CD   | guy in the suit gets all the credit. 

-------------- next part --------------
A non-text attachment was scrubbed...
Name: not available
Type: application/pgp-signature
Size: 189 bytes
Desc: not available
URL: <http://lists.winstonsmith.org/pipermail/e-privacy/attachments/20041010/816a07a2/attachment.pgp>