Judges Take Second Look at E-Mail Privacy Decision

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

The ruling, handed down by a panel of three federal judges in June, foundthat e-mail service providers may divert and read their customers’ messageswithout restriction.

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

Rare Procedure

“It’s relatively rare procedure, certainly not unheard of,” Orin S. Kerr, anAssociate Professor of Law at George Washington University Law School inWashington, D.C., told TechNewsWorld.

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

“We’re very happy with the court’s decision,” CDT Staff Counsel Lara Flinttold TechNewsWorld. “It’s an unusual thing for a court to hear a case enbanc, but this is an unusual case.”

Dire Implications

EFF Attorney Kevin Bankston added: “We asked that this happen in ourfriend of the court brief because we think the original panel decision was amistake in reading the law, with dire implications for e-mail privacy.”

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

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

Decision Frustrates Act

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

That interpretation essentially said that anyone holding themselves out asinternet service providers can intercept communication in transit without anylegal process, maintained EPIC President and Executive Director MarcRotenberg.

“It’s an interpretation of the federal wire tap act that frustrates theintent of the act,” he told TechNewsWorld.

Key Questions

In issuing its en banc order, the court asked parties in the case to addressin briefs to the judges questions on whether actions in the case should havebeen 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 ifthere’s a question — due to ambiguity or conflict in the law — that a crimewas 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,” hesaid.

Tea Leaves

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

“It’s kind of hard to read the tea leaves of what the First Circuit isthinking,” he observed.

“It may be thinking that applying the wiretap act will be a stretch of thelanguage of the statute, but we want to make sure that this kind of behaviorcan be punished,” he explained.

“Or,” he continued, “it may be trying to figure out what the implicationsare for government access to stored communications. If the wiretap act doesnot apply, that means the government does not have to get a wiretap order tointercept e-mails if they install their interception equipment at theprovider.”

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 tipoff of how it will eventually rule on the case. “[The questions] are a signthat the full court wants to provide a more elaborate explanation for thesame result, he said.

“That’s obviously a prediction, and a I could be wrong,” he added, “but myview of this is this is not a sign that the result is going to change.”

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