AR-News: NYTimes: You've Got Mail (and Court Says Others Can Read It)

[Ronda Roaring]

> The New York Times
>
> You've Got Mail (and Court Says Others Can Read It)
>
> Tuesday, July 6, 2004
> By SAUL HANSELL
>
>
> When everything is working right, an e-mail message appears
> to zip instantaneously from the sender to the recipient's
> inbox. But in reality, most messages make several momentary
> stops as they are processed by various computers en route
> to their destination.
>
> Those short stops may make no difference to the users, but
> they make an enormous difference to the privacy that e-mail
> is accorded under federal law.
>
> Last week a federal appeals court in Boston ruled that
> federal wiretap laws do not apply to e-mail messages if
> they are stored, even for a millisecond, on the computers
> of the Internet providers that process them - meaning that
> it can be legal for the government or others to read such
> messages without a court order.
>
> The ruling was a surprise to many people, because in 1986
> Congress specifically amended the wiretap laws to
> incorporate new technologies like e-mail. Some argue that
> the ruling's implications could affect emerging
> applications like Internet-based phone calls and Gmail,
> Google's new e-mail service, which shows advertising based
> on the content of a subscriber's e-mail messages.
>
> "The court has eviscerated the protections that Congress
> established back in the 1980's," said Marc Rotenberg, the
> executive director of the Electronic Privacy Information
> Center, a civil liberties group.
>
> But other experts argue that the Boston case will have
> little practical effect. The outcry, said Stuart Baker, a
> privacy lawyer with Steptoe & Johnson in Washington, is
> "much ado about nothing."
>
> Mr. Baker pointed out that even under the broadest
> interpretation of the law, Congress made it easier for
> prosecutors and lawyers in civil cases to read other
> people's e-mail messages than to listen to their phone
> calls. The wiretap law - which requires prosecutors to
> prove their need for a wiretap and forbids civil litigants
> from ever using them - applies to e-mail messages only when
> they are in transit.
>
> But in a 1986 law, Congress created a second category,
> called stored communication, for messages that had been
> delivered to recipients' inboxes but not yet read. That
> law, the Stored Communications Act, grants significant
> protection to e-mail messages, but does not go as far as
> the wiretap law: it lets prosecutors have access to stored
> messages with a search warrant, while imposing stricter
> requirements on parties in civil suits.
>
> Interestingly, messages that have been read but remain on
> the Internet provider's computer system have very little
> protection. Prosecutors can typically gain access to an
> opened e-mail message with a simple subpoena rather than a
> search warrant. Similarly, lawyers in civil cases,
> including divorces, can subpoena opened e-mail messages.
>
> The case in Boston involved an online bookseller, now
> called Alibris. In 1998, the company offered e-mail
> accounts to book dealers and, hoping to gain market
> advantage, secretly copied messages they received from
> Amazon.com. In 1999, Alibris and one employee pleaded
> guilty to criminal wiretapping charges.
>
> But a supervisor, Bradford C. Councilman, fought the
> charges, saying he did not know about the scheme. He also
> moved to have the case dismissed on the ground that the
> wiretapping law did not apply. He argued that because the
> messages had been on the hard drive of Alibris's computer
> while they were being processed for delivery, they counted
> as stored communication. The wiretap law bans a company
> from monitoring the communications of its customers, except
> in a few cases. But it does not ban a company from reading
> customers' stored communications.
>
> "Congress recognized that any time you store communication,
> there is an inherent loss of privacy," said Mr.
> Councilman's lawyer, Andrew Good of Good & Cormier in
> Boston.
>
> In 2003, a federal district court in Boston agreed with Mr.
> Councilman's interpretation of the wiretap law and
> dismissed the case. Last week, the First Circuit Court of
> Appeals, in a 2-to-1 decision, affirmed that decision.
>
> Because most major Internet providers have explicit
> policies against reading their customers' e-mail messages,
> the ruling would seem to have little effect on most people.
>
> But this year Google is testing a service called Gmail,
> which electronically scans the content of the e-mail
> messages its customers receive and then displays related
> ads. Privacy groups have argued that the service is
> intrusive, and some have claimed it violates wiretap laws.
> The Councilman decision, if it stands, could undercut that
> argument.
>
> Federal prosecutors, who often argue that wiretap
> restrictions do not apply in government investigations,
> were in the somewhat surprising position of arguing that
> those same laws should apply to Mr. Councilman's conduct. A
> spokesman for the United States attorney's office in Boston
> said the department had not decided whether to appeal.
>
> Mr. Baker said that another federal appeals court ruling,
> in San Francisco, is already making it hard for prosecutors
> to retrieve e-mail that has been read and remains on an
> Internet provider's system.
>
> In that case, Theofel v. Farey-Jones, a small Internet
> provider responded to a subpoena by giving a lawyer copies
> of 339 e-mail messages received by two of its customers.
>
> The customers claimed the subpoena was so broad it violated
> the wiretap and stored communication laws. A district court
> agreed the subpoenas were too broad, but ruled they were
> within the law. The plaintiffs appealed, and the Justice
> Department filed a friend of the court brief arguing that
> the Stored Communications Act should not apply.
>
> In February, the appeals court ruled that e-mail stored on
> the computer server of an Internet provider is indeed
> covered by the Stored Communications Act, even after it has
> been read. The court noted that the act refers both to
> messages before they are delivered and to backup copies
> kept by the Internet provider. "An obvious purpose for
> storing a message on an I.S.P.'s server after delivery,"
> the court wrote, " is to provide a second copy of the
> message in the event that the user needs to download it
> again - if, for example, the message is accidentally erased
> from the user's own computer."
>
> Calling e-mail "stored communication" does not necessarily
> reduce privacy protections for most e-mail users. While the
> Councilman ruling would limit the applicability of wiretap
> laws to e-mail, it appears to apply to a very small number
> of potential cases. The Theofel decision, by contrast, by
> defining more e-mail as "stored communications," is
> restricting access to e-mail in a wide range of cases in
> the Ninth Circuit, and could have a far greater effect on
> privacy if courts in the rest of the country follow that
> ruling.
>
> http://www.nytimes.com/2004/07/06/technology/06net.html?ex=1090129779&ei=
> 1&en=ceea7ac288ddfa83
>
> Copyright 2004 The New York Times Company
>
> Letters to the editor (150 words max):
> letters at nytimes.com
>
>
>


		
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