U.S. Court Reverses Decision on Intercepted Emails

Rhett Pardon
BOSTON — A federal appeals court has ruled that even though emails are stored in computer memory during transmission, it is still criminal for an email provider — or anyone else — to secretly intercept them.

The decision by the 1st U.S. Circuit Court of Appeals was a defeat for an executive who configured email processing software so that all incoming email sent from a competitor was secretly copied and sent to his personal email account before it arrived in the intended recipient's mailbox.

Unless appealed to the U.S. Supreme Court, the reversal of a previous ruling by a three-judge 1st Circuit panel shuts the door to further interpretations of the federal Wiretap Act that otherwise would have eroded personal privacy rights.

Last year, the panel upheld a federal judge's earlier dismissal last year of a wiretapping charge against former Interloc Vice President Branford C. Councilman.

The government said that Interloc, a now-defunct online seller of rare books, tried to exploit Amazon.com 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, an appeals panel previously held.

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.

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.”

By interpreting the Wiretap Act's privacy protections narrowly, the EFF said the court effectively gave Internet communications providers free rein to invade the privacy of their users for any reason and at any time.

After several groups, including the EFF, filed briefs supporting the government's petition for a new hearing, the appeals court granted a rehearing of the case before all the judges in the circuit.

With last week’s decision, the 1st Circuit ruled that Councilman could be prosecuted under the Wiretap Act.

“The Wiretap Act is not unconstitutionally vague in its application here,” the court, overturning its decision, wrote. “From its text, a person of average intelligence would, at the very least, be on notice that ‘except as otherwise specifically provided in’ the Act, ‘electronic communications,’ which are defined expansively, may not be ‘intercepted.’”

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