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Judges Take Second Look at E-Mail Privacy Decision

By John P. Mello Jr.
Oct 7, 2004 8:01 AM PT

A court decision that civil libertarians argue could have a far-reaching effect on the privacy of Internet communications in the United States will be reviewed again by federal judges in Boston.

Judges Take Second Look at E-Mail Privacy Decision

The ruling, handed down by a panel of three federal judges in June, found that e-mail service providers may divert and read their customers' messages without restriction.

Following the panel's decision, civil liberties groups including the Electronic Frontier Foundation (EFF), the Center for Democracy & Technology (CDT), Electronic Privacy Information Center (EPIC) and the American Library Association (ALA) requested that the case, U.S. v. Councilman, be reheard before the full-bench of the First Circuit Court of Appeals, a procedure called en banc.

Rare Procedure

"It's relatively rare procedure, certainly not unheard of," Orin S. Kerr, an Associate Professor of Law at George Washington University Law School in Washington, D.C., told TechNewsWorld.

Kerr and Peter Swire, a law professor at the Michael E. Moritz College of at Ohio State University, in Columbus, Ohio, co-authored a "friend of the court" brief asking the court to rehear Councilman before all its judges.

"We're very happy with the court's decision," CDT Staff Counsel Lara Flint told TechNewsWorld. "It's an unusual thing for a court to hear a case en banc, but this is an unusual case."

Dire Implications

EFF Attorney Kevin Bankston added: "We asked that this happen in our friend of the court brief because we think the original panel decision was a mistake in reading the law, with dire implications for e-mail privacy."

The case before the three-judge panel involved a bookseller, Bradford Councilman, who also offered e-mail services to his customers. Councilman configured his service to secretly copy all incoming e-mail from, a competitor, and forward the copies to his mailbox.

The U.S. Justice Department argued Councilman was intercepting mail in transit -- which would violate federal criminal wiretap laws -- but the panel, in a two-to-one decision, said another law applied - -the federal "Stored Communications Act (SCA)," a statute with less robust protections than the wiretap act.

Decision Frustrates Act

"The panel decision that the court has agreed to rehear en banc interpreted the wire tap law in way that no one intended, and we certainly hope that the full court will reverse that decision."

That interpretation essentially said that anyone holding themselves out as internet service providers can intercept communication in transit without any legal process, maintained EPIC President and Executive Director Marc Rotenberg.

"It's an interpretation of the federal wire tap act that frustrates the intent of the act," he told TechNewsWorld.

Key Questions

In issuing its en banc order, the court asked parties in the case to address in briefs to the judges questions on whether actions in the case should have been prosecuted under the federal Stored Communications Act and whether the "rule of lenity" precludes prosecution of the case.

The rule of lenity prevents a person from being prosecuted for a crime if there's a question -- due to ambiguity or conflict in the law -- that a crime was committed in the first place.

The EFF's Bankston found the stored communication question unusual. "It's a curious question because it has an obvious answer, which is no," he said.

Tea Leaves

He asserted that the problem with the original opinion was that it treated e-mail as stored information, which would be subject to the Stored Communications Act, instead of information in transit, which would be subject to the wiretap act.

"It's kind of hard to read the tea leaves of what the First Circuit is thinking," he observed.

"It may be thinking that applying the wiretap act will be a stretch of the language of the statute, but we want to make sure that this kind of behavior can be punished," he explained.

"Or," he continued, "it may be trying to figure out what the implications are for government access to stored communications. If the wiretap act does not apply, that means the government does not have to get a wiretap order to intercept e-mails if they install their interception equipment at the provider."

More Judges, Same Result?

Councilman's attorney, however, contests that notion.

"This case is about a private actor; it's not about government actors," Andrew Good, a partner with Good & Cormier in Boston told TechNewsWorld.

He maintained that the questions in the court's rehearing order are a tip off of how it will eventually rule on the case. "[The questions] are a sign that the full court wants to provide a more elaborate explanation for the same result, he said.

"That's obviously a prediction, and a I could be wrong," he added, "but my view of this is this is not a sign that the result is going to change."

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