EFF Backs Justice Department Against Cyber-Snooping

Gretchen Gallen
BOSTON — In a rare move, the Electronic Frontier Foundation is backing the Justice Department in a court case. EFF attorney Kevin Bankston told XBiz that this case is of “central importance to the future of all Internet users’ privacy.”

EFF is a San Francisco-based organization that usually goes head-to-head with the Justice Department, fighting tooth-and-nail against cyber-surveillance laws, such as the U.S. Patriot Act. But now, EFF’s courtroom gladiators and champions of truth have submitted a friend-of-the-court brief backing the department headed by the man cyber-libertarians love to hate: Attorney General John Ashcroft

EFF’s amicus curiae supports the Justice Department’s petition for a rehearing in the United States vs. Councilman case. The defendant in this case, Bradford Councilman, is a seller of rare and used books who offered his customers email service.

Unbeknownst to them, in 1998, Councilman configured the electronic mail processing software so that all incoming email sent from his competitor, Amazon.com, was copied and sent to his mailbox before the clients they were intended for.

In June 2004, a three-judge panel of the First Circuit Court of Appeals in Massachusetts ruled that under the law, emails in transit are protected by the Wiretap Act. However, those stored in a computer are not. On the basis of what some perceive as a technicality, the appellate court did not find Councilman guilty of eavesdropping.

Bankston explained the First Circuit judges’ ruling, saying: “Emails stored in a computer have a lower standard than those in transit. If they are in storage, there are no prohibitions on the communications provider from having access to the emails.” In layman’s language, Councilman was not convicted for cyber-spying on others’ email messages.

However, both the Justice Department and the Electronic Frontier Foundation - who are usually courtroom adversaries - disagree with the legal decision. In late August, Justice filed a petition calling for a rehearing on the matter, and a rehearing en banc.

En banc means that the entire panel of judges – which Bankston said was up to seven judges – would consider the matter. EFF filed its friend-of-the-court brief endorsing the appellant’s petition within the one week provided for submitting such briefs.

The amicus curiae brief was written by Orin Kerr and Peter Swire, law professors who specialize in Internet privacy issues. In addition to EFF, the Center for Democracy and Technology, the Electronic Privacy Information Center, and the American Library Association co-signed the friend-of-the-court brief.

Bankston said the case “absolutely does have big-picture significance. If this case is not reheard and overturned, it has important implications regarding government surveillance.”

The law, like politics, may make for strange bedfellows, bringing the civil liberties-minded EFF into a de facto alliance with the Justice Department. The attorney general and Justice are reviled by critics for alleged repressive measures, such as the Patriot Act.

Bankston said that it could be months before the First Circuit decides on whether or not to grant the rehearing sought by both of these most unlikely of allies. Meanwhile, the Electronic Frontier Foundation has filed two other friend-of-the-court briefs in American Civil Liberties Union cases - both of them against the Patriot Act.