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Old 07-10-04   #1
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Derail E-Mail Snooping
Washington Post | Editorial

Friday 02 July 2004

Imagine that your friendly local mail carrier, before delivering a letter for you, decides to steam it open and read its contents. An outrageous and illegal infringement on your privacy, obviously. But a federal appeals court in Boston has just permitted an Internet service provider to engage in exactly this kind of snooping when the message is sent in cyberspace rather than by snail mail. This ruling is an unnecessarily cramped parsing of a law that Congress meant to guard, not eviscerate, the privacy of communications. The Justice Department, whose prosecution of the ISP executive was thrown out by the appeals court, should seek a review of the ruling. If that doesn't work - if the federal wiretapping law has been outpaced by the technology it was supposed to regulate - Congress should quickly step in to fix the glitch.

The wiretapping law makes it a crime to intentionally intercept "any wire, oral, or electronic communication." This language dates to 1986, when e-mail was at an embryonic stage but Congress, in an effort to account for and anticipate that and other technological changes, enacted the Electronic Communications Privacy Act.

The appeals court, however, ruled that opening and reading e-mails isn't covered by the wiretapping law because the messages weren't actually intercepted, as the law defines that term, but were, rather, in "electronic storage" and therefore covered by another, looser law. That finding stems from the peculiar nature of e-mail transmission, in which messages are briefly stored as they're transmitted from computer to computer. As the court itself acknowledged, that would leave little privacy for e-mail: "It may well be that the protections of the Wiretap Act have been eviscerated as technology advances."

In practical terms, the implications of the ruling are perhaps more troubling for the restraints it lifts on law enforcement than for the theoretical leeway it gives service providers to copy and read e-mails. The facts of the case were unusual: A small online company that sold out-of-print books and also provided free e-mail service wanted to peek at's sales strategy and copied all of Amazon's messages to the smaller company's customers. Mainstream ISPs have policies that eschew such spying, and the customer backlash that would ensue if they engaged in similar practices would probably deter them from doing so. But the ruling highlights the need for stringent privacy policies in which customers give clear - and informed - consent.

Of more concern, the case could make it far easier for law enforcement agents to engage in real-time monitoring of e-mail and similar traffic, like instant messaging, without complying with the strict rules applied to wiretaps. Under this reading of the law, agents would still need to show
probable cause to obtain search warrants from a judge. But they wouldn't have to hew to the more exacting requirements of the wiretap law.

E-mail has become too ubiquitous, too central a facet of modern life, for this ruling to stand.

Intercepting E-Mail
New York Times | Editorial

Friday 02 July 2004

When you click on "send" to deliver that e-mail note to your lover, mother or boss, you realize that you are not communicating directly with that person. As you well know, you have stored the
e-mail on the computer of your Internet service provider, which, as you also know, may read, copy and use the note for its own purposes before sending it on.

What, you didn't know all this? Sounds ludicrous? We would have thought so, too, but a federal appeals court recently ruled that companies providing e-mail services could read clients' e-mail notes and use them as they wish. Part of its rationale was that none of this would shock you because you have never expected much online privacy.

Count us among the shocked. The decision, on a 2-to-1 vote by a panel of the United States Court of Appeals for the First Circuit in Massachusetts, sets up a frightening precedent, one that must be reversed by the courts, if not the Congress. It's true that people are aware of some limits on online privacy, particularly in the workplace. But the notion that a company like America Online, essentially a common carrier, has the right to read private e-mail is ludicrous.

All major I.S.P.'s, including AOL, say they have no interest in doing that and have privacy policies against it. The case before the First Circuit involved a small online bookseller, no longer in business, that also provided e-mail service. To learn about the competition, the company copied and reviewed all e-mail sent from to its e-mail users. One of its executives was indicted on an illegal-wiretapping charge.

Both the trial and appeals courts ruled that the federal wiretap law, which makes it a crime to intercept any "wire, oral or electronic communication," did not apply because there had been no actual interception. Technically speaking, the judges held, the bookseller had simply copied e-mail notes stored on its servers, and different laws apply to the protection of stored communications.

These laws were drafted before e-mail emerged as a form of mass communication, so there is some ambiguity in how to apply them. But as the dissenting judge on the appellate panel noted, his two colleagues interpreted the wiretap statute far too narrowly. What's more, their analysis was predicated on the bizarre notion that our e-mail notes are not in transit once we send them, but in storage with an intermediary. The same logic would suggest that the postal service can read your letters while they are in "storage."

Americans' right to privacy will be seriously eroded if e-mail is not protected by wiretap laws. The implications of this erosion extend beyond the commercial realm. The government will also find it easier to read your e-mail if it does not have to get a wiretap order to do so. Congress ought to update the law to make it clear that e-mail is entitled to the same protection as a phone call.

So i Have to wonder.. Where would this stand on the politicians voting ring..
Goes to show that even judges can't keep up with the times..
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