E-Mail Wiretapping Prosecutions Could Increase in the Future

A federal appeals court case on e-mail wiretapping has significant potential ramifications for the entire Internet industry, lawyers say.

A federal appeals court ruling in Boston last week on e-mail wiretapping is reverberating throughout the Internet community—and legal world—with a consensus emerging that there may be prosecutions in the future for what today is considered normal business practice by ISPs.

The First Circuit Court of Appeals, voting 5-2, ruled that an e-mail service provider that supposedly read e-mail, intended for customers only, could indeed be tried on federal criminal charges.

This overruled a 2-1 vote last summer by a three judge panel in the same matter.

In a majority opinion written by Judge Kermit Lipez, a Clinton appointee, of the First Circuit, the court said the prosecution under the federal Wiretap Act could proceed, because the "statute contains no explicit indication that Congress intended to exclude communications in transient storage from the definition."

The case centers on an indictment of Bradford Councilman, one-time vice president of online bookseller Interloc.

That firm furnished some of its customers, dealers of used books, with e-mail addresses that had the domain name suffix of "@interloc.com."

The indictment by the U.S. attorney alleges that Councilman ordered his underlings to create a Procmail script.

Procmail is a popular Unix utility used for sorting and delivering incoming e-mail.

Councilmans lawyers had argued that e-mail stored in a queue was not covered by the federal wiretapping law, but the judges positions differed.

Lawyers tell Ziff Davis Internet that the case has significant ramifications for the entire Internet industry, though employers who spy on employee e-mail, after warning that they will do so, will still probably be exempt from the law. The government had sought an expansion of the interpretation of the law.

"The case involved the complex law governing illegal access to emails—so complex that the district court and court of appeals each reversed themselves once in this case. The final decision ruled that e-mails that have not yet reached their intended recipient are governed by the Wiretap Act, even if they are temporarily held in storage as part of the transmission process," said Michael Vatis, an attorney with the famed law firm of Steptoe & Johnson, based in New York City.

"This was the result sought by the government and by some civil liberties groups."

Next Page: "Illegal" purpose.