Federal Appeals Court Allows Email Interception

In a decision by the 1st U.S. Circuit Court of Appeals with potentially profound implications, the court upheld a federal judge's dismissal last year of a wiretapping charge against a former Interloc vice president, Branford C. Councilman.

The government said that Interloc, a now-defunct online seller of rare books, tried to exploit the Amazon emails "to develop a list of books, learn about competitors and attain a commercial advantage."

Councilman had directed employees to write computer code to intercept and copy all incoming emails from Amazon.com to Interloc's subscribers — all prior to the eventual delivery of email messages to their intended recipients, the book dealers who had an email account with Interloc.

The government charged Councilman with conspiracy to violate the Wiretap Act; namely, to intercept an electronic communication and disclose its contents.

But Councilman argued that no violation of the Wiretap Act had occurred because the emails were copied while in "electronic storage."

He claimed the messages were in the process of being routed through a network of servers to recipients.

Because such messages were in "electronic storage," they were not intercepted for purposes of the Wiretap Act, Judge Juan R. Torruella wrote for the majority of the appeals panel.

The court said that messages in storage, however "temporary" or "intermediate" such storage might be, are not protected as electronic communications under the Wiretap Act.

In Tuesday’s dissenting opinion, Judge Kermit V. Lipez of the Boston-based 1st Circuit wrote that upholding Councilman's arguments "would undo decades of practice and precedent regarding the scope of the Wiretap Act and would essentially render the act irrelevant to the protection of wire and electronic privacy."

The Electronic Frontier Foundation immediately denounced the ruling, saying in a statement that the court "dealt a grave blow to the privacy of Internet communications."

Jerry Berman, president of the Center for Democracy and Technology, said he thinks the ruling “violates the letter and spirit of the statute," and that the ruling makes it acceptable for companies that offer email service to surreptitiously track subscribers' messages.

"It puts all of our electronic communications in jeopardy — voice mail, email, you name it," he said.

The case is United States vs. Councilman, No. 03-1383