Internet Wiretaps Prohibited…For Now
IBLS Contributor: Attorney Odia Kagan, Tel Aviv, Israel, odia@okaganlaw.com, writes:
In an unusual decision the Court granted the motion of civil rights organizations to rehear a case, pertaining to the wiretapping of e-mail messages.
The Federal Court of Appeals of the First Circuit decided on October 5, 2004 to rehear the US v. Councilman case, which had been decided by the same Court on June 29, 2004. In this decision, the Court ruled that Internet service providers did not violate the Wiretap Act by monitoring the content of users’ e-mail messages without their permission. The Court vacated the decision pending the rehearing of the case.
The Events Leading To the Decision to Rehear
The Federal Court Decision, which has been vacated, was very controversial and was strongly criticized all over the world. Most of the criticism emphasized that this decision greatly harmed the rights to privacy because it eliminated the requirement to obtain a subpoena permitting an e-mail wiretap. EFF, an organization fighting for freedom of speech and the right to privacy in the electronic world, led the opposition to the decision. EFF filed a friend-of-the-court brief requesting that the Court rehear the case. This motion was granted by the Court.
In the motion to rehear, the EFF notes that the Court’s decision in the Councilman case has far reaching ramifications, which Congress had neither intended nor anticipated, as to the right to privacy in the World Wide Web and regarding Internet surveillance laws. EFF believes that this decision opens the door to greater governmental supervision of the Internet. Furthermore, the Court’s interpretation, whereby most Internet wiretaps are not regulated by the strict Wiretap Act, but rather fall under the more lenient Stored Communications Act, may render the latter unconstitutional for not awarding sufficient protection, under the Fourth Amendment right to privacy and to protection from illegal search and seizure.
The Facts in Brief
The Councilman case deals with a company named Interloc (now Alibris) which did business in the online sale of used and rare books, and at the same time also provided Internet services to its clients. During 1998, pursuant to instructions by the CEO, Mr. Councilman, the Company intercepted and saved copies of its customers’ e-mail messages, especially messages from its competitor, Amazon.com. The Company did so without the customers’ knowledge or consent to obtain information from which commercial gain could be made. Mr. Councilman was charged with “illegal wiretap” under the Wiretap Act.
In the District Court, Mr. Councilman was acquitted of the charge. The Federal Court of Appeal affirmed the acquittal. In its controversial decision, the Court held by a majority opinion that Mr. Councilman did not violate the relevant provisions in the Wiretap Act because an interception of e-mail messages (which is prohibited under the Act) may be conducted only when the electronic messages are “in transit”. However, in this case, the intercept occurred when the messages were “in electronic storage” in the company’s computers. The Court recognized that this decision removes certain protections granted by the Wiretap Act but stated that the reason for this is that the Act (signed into law in 1986) is out-of-step with the technological advances of recent years. The Court said it was up to Congress to amend the Act.
The Minority Opinion
Judge Lipez, writing the minority opinion, stated that the majority opinion would undo decades of practice and precedent regarding the scope of the Wiretap Act and would effectively render the Act irrelevant to the protection of wire and electronic privacy. In his decision, Judge Lipez held that the Wiretap Act applies to electronic messages also when they are in electronic storage. He believes that the Court’s interpretation as set forth in the majority decision, would grant e-mail messages the protections found in the Wiretap Act only when they travel through cables, and would not apply most of the time, when the messages are processed by electronic switches and computers or during transit and delivery.
The Ramifications of the Decision: “It Is Like Permitting a Postal Worker To Open and Read Letters.”
The Court’s decision has far reaching ramifications and was widely criticized in the US and worldwide. First, the decision permits Internet service providers to supervise and read their customers’ private correspondence undisturbed. In addition, it makes governmental surveillance of the Internet easier in that pursuant to this decision, a governmental authority interested in intercepting an electronic message, only needs to obtain a warrant and no longer needs to comply with the strict requirements for obtaining subpoenas permitting interception. Furthermore, this decision makes electronic communication less protected than telephone or post communication. Therefore, many objected to the decision.
Congressional Response
Due to the intense criticism, Congress began legislative proceedings to reverse the Councilman decision and grant electronic communications protections similar to those existing with regard to telephone communications. In a bill introduced before the House of Representative on July 22, 2004, the definition of “intercept” has been amended to include electronic communications in temporary storage at any point during transmission.
**Reprinted with permission from the Israel Bar Association Website (www.israelbar.org.il), where it was published on February 13, 2005. This article was originally published in Hebrew in NFC (www.nfc.co.il) on October 17, 2004 (http://www.nfc.co.il/archive/003-D-7659-00.html?tag=19-05-08 ).
Ms. Kagan specializes in Internet and IT law. Her articles on these subjects are published regularly in professional publications of the American Bar Association and the New York State Bar Association, as well as in national Israeli websites. Ms. Kagan authored the Israeli Chapter in the book “Cybercrime and Security” published worldwide by Oceana Publications, a division of Oxford University Press. A graduate of the Law Faculty of Tel Aviv University, Ms. Kagan is a member of the Israel and New York Bars, is qualified as a Solicitor in England & Wales and is also admitted as legal practitioner in New South Wales, Australia.