Wiretap Ruling Could Signal End of E-Mail Privacy

By Matthew Hicks  |  Posted 2004-07-01 Print this article Print

An appeals court's ruling that stored e-mail isn't protected from eavesdropping under the federal Wiretap Act could allow more service providers to snoop, legal experts say.

A federal appeals court ruling this week has put a spotlight on the increasingly public nature of e-mail messages and has unraveled expectations that e-mail would gain the same privacy protections as traditional communications. The 1st Circuit Court of Appeals on Tuesday ruled that protections under the federal Wiretap Act do not extend to e-mail messages stored on an e-mail providers computer systems. "The fact is that there is now an emerging line of precedent in the courts that people should not expect privacy in their e-mail, for the most part," said Mark Plotkin, a partner at law firm Covington & Burling, in Washington, D.C.
The decision stemmed from a 2001 indictment on wiretapping charges against an executive of Interloc Inc., a now-shuttered listing company for rare and used books. Bradford Councilman, who was a vice president at the company, was accused of having copied e-mails from Amazon.com Inc. that were being sent to book dealers who subscribed to Interlocs e-mail service.
In a 2-1 ruling, the appeals court upheld a lower courts dismissal of the illegal wiretapping charge. Privacy advocates immediately called the ruling a blow to privacy rights, and technology attorneys agreed that the courts decision should put an end to users expectations that their e-mails are safe from prying eyes. The courts decision hinged on the fact that the Wiretap Act, which dates to 1968, covers eavesdropping on live communications such as a phone conversations but not on stored communications, such as an e-mail message even temporarily stored on an e-mail providers servers or computers en route to a recipient. "We believe that the language of the statute makes clear that Congress meant to give lesser protection to electronic communications than to wire and oral communications," the courts ruling stated. The decision is a blow to more than just the privacy of e-mail. It also could hurt efforts to prevent and prosecute other forms of cyber-crime, said Allonn Levy, an attorney with Hopkins & Carley in San Jose, Calif. "By ruling that copying e-mail messages that had been stored by a computer while in transit is not a crime under the federal Wiretap Act, the First Circuit has removed an important tool for fighting industrial espionage, stalking, identity theft and other information-based crime," he said. Next Page: Court says it would be up to Congress to change the laws language.

Matthew Hicks As an online reporter for eWEEK.com, Matt Hicks covers the fast-changing developments in Internet technologies. His coverage includes the growing field of Web conferencing software and services. With eight years as a business and technology journalist, Matt has gained insight into the market strategies of IT vendors as well as the needs of enterprise IT managers. He joined Ziff Davis in 1999 as a staff writer for the former Strategies section of eWEEK, where he wrote in-depth features about corporate strategies for e-business and enterprise software. In 2002, he moved to the News department at the magazine as a senior writer specializing in coverage of database software and enterprise networking. Later that year Matt started a yearlong fellowship in Washington, DC, after being awarded an American Political Science Association Congressional Fellowship for Journalist. As a fellow, he spent nine months working on policy issues, including technology policy, in for a Member of the U.S. House of Representatives. He rejoined Ziff Davis in August 2003 as a reporter dedicated to online coverage for eWEEK.com. Along with Web conferencing, he follows search engines, Web browsers, speech technology and the Internet domain-naming system.

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