Rep. Jay Inslee, D-Wash., along with three colleagues in the U.S. House, last week introduced a bill to protect e-mail messages from snooping while in transit as well as to restrict when service providers can access stored messages. It has gained nods of approval from bipartisan backers as well as some privacy advocates, but it remains unclear whether it will move forward in Congress.
Inslee said he was responding to a decision from the 1st Circuit Court of Appeals in late June that riled privacy advocates and surprised some technology attorneys.
The court ruled that the federal Wiretap Acts protections against surveillance do not extend to e-mail messages stored—even momentarily—on a service providers computer systems.
"The court of appeals decision was an explosion on all of our perceptions of privacy," Inslee said in an interview with eWEEK.com.
The courts decision hinged on the language of the Wiretap Act, which it found did not provide the same eavesdropping protections for stored communications—such as e-mail messages temporarily residing on computers—as it did for live communications such as phone conversations.
The "E-Mail Privacy Act of 2004" would update the Wiretap Act to make it a crime to access the content of an e-mail message between the point when it is sent and the point when it becomes available to the recipient.
But the bill also goes a step further. It adds new restrictions on when e-mail service providers can access messages once they have reached their end point. Access would be allowed when it is necessary to keep the service operating, protect the providers property or fulfill a court order.
The Electronic Frontier Foundation, a San Francisco-based advocacy group critical of the e-mail privacy ruling, supports the new legislation and welcomes the greater restrictions on provider access, said EFF attorney Kevin Bankston.
The court decision stemmed from wiretapping charges against Bradford Councilman, a former vice president at Interloc Inc., a now-shuttered listing company for rare and used books. Interloc had offered an e-mail service to book dealers, and Councilman had been accused of copying e-mails sent to subscribers from Amazon.com Inc.
"The [privacy] threat was already there, and the Councilman decision extended the threat," Bankston said. "Councilman, more than anything, brought to light the fact that providers already had a tremendous amount of power over e-mail."
Current law does not bar providers from reading e-mail even once it is received and stored, Bankston said. But many providers do have their own privacy policies that limit access to e-mail.
Bankston said he is optimistic that e-mail providers would support the legislation given their privacy policies, and Inslee said he worked with some large players in making sure that the bills language wouldnt interfere in operating e-mail services.
A bigger stumbling block could be Congress itself. Members are currently in recess until after Labor Day. When they return to Washington, the report and recommendations of the 9-11 Commission are expected to dominate action for the remainder of the session.
Inslee agreed that it could be difficult to move the bill forward this year but noted that it has bipartisan support. The co-sponsors included another Democrat, Bill Delahunt of Massachusetts, as well as two Republican members, Roscoe Bartlett of Maryland and Jeff Flake of Arizona.
One technology attorney who disagrees with the appeals courts ruling said a legislative fix may be premature.
Allonn Levy of law firm Hopkins & Carley, in San Jose, Calif., said the courts ruling seemed to leave open the possibility of a reversal and that if prosecutors were to appeal further to the U.S. Supreme Court, it is the type of case that would likely be heard by the highest court.
"Im not sure one courts interpretation is a good reason to change the law," Levy said.