Up to Congress
The appeals court agreed that "the language may be out of step with the technological realities of computer crimes." But it argued that it is the role of the U.S. Congress, not the courts, to change any language in the law to extend the eavesdropping protections to e-mail and electronic communications. "What the courts are telling us is that unless the Wiretap Act is changed, e-mail should be viewed as public communication that anybody could potentially view," Plotkin said.While the ruling would appear to allow Internet and e-mail service providers to read and copy users e-mails, most major ones have their own privacy policies against such practices. A Yahoo Inc. spokeswoman, for example, said the company "does not access or disclose user information and content except in very limited circumstances such as when required to do so by law." Google Inc.s foray into e-mail has raised privacy concerns. Click here to read more about its message scanning in Gmail. Still, the ruling does remove what could have been one barrier to ISPs accessing e-mail for such activities as data-mining it for commercial purposes, said Paul Winick, a partner at law firm Thelen, Reid & Priest LLP, in New York. "As long as your e-mail is in storage, your service provider is not going to violate the Wiretap Act in reading your e-mail," he said. When it comes to government access to e-mail, law enforcement officials still would need a warrant to access e-mail, Winick said. But with wire communications, such as phone calls, the Wiretap Act restricts the types of conversations that could be tapped. Given the appeals courts ruling, similar limitations likely wont apply to stored e-mail messages once law enforcement officials gain access, he said. Click here to read more about controversial government data-mining projects that are raising concerns about privacy. Beyond a push for updated laws, the courts ruling reinforces the need for businesses and consumers to take e-mail security more seriously, said Sonia Arrison, director of technology studies at the Pacific Research Institute, a San Francisco-based think tank advocating a free-market philosophy. Arrison said that rather than seeking new privacy laws, e-mail users need to embrace encryption methods for securing sensitive e-mails. "E-mail is just inherently insecure, and we have a whole bunch of problems because of it," Arrison said. "There are two things to take from this ruling: Know that your e-mail is not private and it never has been, and figure out what to do about it." Check out eWEEK.coms Messaging & Collaboration Center at http://messaging.eweek.com for more on IM and other collaboration technologies.
Plotkin said he expects the ruling to embolden privacy advocates and others to push for changes in the law, but he doubts that the political climate will lead members of Congress to act. In light of terrorism threats, the issue will likely become one of security versus privacy, which could be a hard sell for privacy advocates, he said.