Intercepting E-Mail

Your ISP has the right to read your emails and use them as they wish. This ruling by the First Circuit of Appeals was reported in the July 2nd New York Times. The ruling occurred in a case, United States of America v Councilman, involving an online bookseller who also provided an email service. From the Times

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.

The defendant, Bradford Councilman, ordered employees to modify the Mail Delivery Agent on the firms computer to make a copy of emails before they were delivered to the clients’ mail boxes. The defendant argued that this action did not violate the Wire Tap act because the messages were in “electronic storage” and therefore could not have been intercepted. (The messages resided in RAM when they were copied.)

The court agreed. In their analysis of the case, the court noted that the Wiretap Act distinguished between wire communications and electronic communications.

“wire communication” means any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable or other like connection between the point of origin and the point of reception furnished or operated by any person engaged in providing or operating such facilities . . . and such term includes any electronic storage of such communication.
. . .
By comparison, “‘electronic communication’ means any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system.”

The Court’s decision hinged on the fact that the definition of electronic communication did not include any provision for electronic storage of data and on the argument that Congress did not intend for the Wire Tap law to apply to stored ‘electronic communication.’ (They cited case law to support their finding.)

Other courts have observed that technology has outpaced the language of the Wire Tap law and the government included this as part of its argument. The government further argued that “if an electronic communication is obtained while it simultaneously in transmission and in storage, then an intercept occurs”.

The court agreed that the the language of the Wire Tap law may be out of step with current technology. However, it did not find that it was within its purview to change the meaning of the law when Congress has spoken plainly.

This was not a unanimous decision. The dissenting Circuit Judge, (Lipez) argued that his colleagues interpreted the law too narrowly. In his opinion, he provided background on technology issues, discussed why he found the defendant’s arguments unpersuasive, reviewed the government’s arguments, and provided his interpretation of case law. This quote is my understanding of his view of congressional intent.

Congress requested a report from the Office of Technology Assessment (OTA) shortly before undertaking its consideration of the Wiretap Act in 1983. The report, Electronic Surveillance and Civil Liberties, used stark language to describe the existing privacy protections:

In the last 20 years, there has been a virtual revolution in the technology relevant to electronic surveillance. Advances in electronics, semiconductors, computers, imaging, databases and related technologies have greatly increased the technical options for surveillance activities . . . The existing statutory framework and jurisdictional interpretations thereof do not adequately cover new electronic surveillance applications.

The report then identified threats associated with five different types of surveillance—telephone, e-mail, electronic physical, electronic visual, and database—and suggested statutory reforms to protect individual privacy from those threats. This report was important in shaping the ECPA*. Congress repeatedly cited it during its deliberations.

The stated purpose of the ECPA was to “protect against the unauthorized interception of electronic communications” and to “update and clarify Federal privacy protections and standards in light of dramatic changes in new computer and telecommunications technologies.”

. . .

In short, Councilman’s approach to the Wiretap Act 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. Since I find it inconceivable that Congress could have intended such a result merely by omitting the term “electronic storage” from its definition of “electronic communication,” I respectfully dissent.

Until this ruling is reversed or new laws are enacted, it is only the privacy policies of the major ISPs that protect us (outside of the workplace). The New York Times article concluded by saying that “Congress ought to update the law to make it clear that e-mail is entitled to the same protection as a phone call.”

* The Electronic Communication and Privacy Act (ECP) amended the federal wire tap law of 1968. Congress began considering the ECPA in 1983.

3 thoughts on “Intercepting E-Mail

  1. I think this court must have been high on crack.  In previous rulings, courts have decided that TTY (typewriter phones)phones are protected under ‘wiretap’ law even though they technically fall into the ‘electronic communications’ category. It’s considered intercepted up to the point until the inteded recipient opens it.  The law probably needs to be updated but this was a very poor ruling.

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