Wiretap Ruling Could Signal End of E-Mail Privacy

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.