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E-mail Privacy is All the Rage

A court ruling triggers an angry outcry, and the House of Representatives files for a legislative fix.

It’s rare that the words “hoopla” and “wiretap act” wind up next to each other.

But the First Circuit Court of Appeals achieved just that on June 29. That’s when the Massachusetts court ruled that it is not a violation of wiretap law for Internet service providers to read e-mail messages that pass through their system. Reaction to the decision was swift. Privacy advocates were aghast. Big-name Internet service providers were quick to assure that their privacy policies prevent such snooping. So perhaps it’s no surprise that Congress, too, acted quickly, slipping in proposed new legislation before adjourning July 24 for the six-week summer recess.

Sparking the outcry was the appeals court’s surprise ruling on the case of U.S. v. Councilman. The case dated to charges brought in 1998 against Bradford Councilman, an executive for Interloc, an online listing service for rare books. Among the services Interloc offered its customers was e-mail. Federal prosecutors charged that Councilman had violated the Wiretap Act by intercepting, copying and then reading all incoming mail that Interloc’s subscribers received from According to the court panel’s 2-1 ruling, that competitive strike wasn’t a crime because e-mail’s natural path along a series of servers makes it a “stored communication” and thus not covered by the Wiretap Act. In the court’s view, Councilman hadn’t intercepted the messages in transit, but instead swiped them during those fractions of seconds that they were “stored” on Interloc’s server.

Should the appeals court ruling stand, e-mail will be left with a fig leaf of legal protection compared to telephone calls. While tapping telephones requires a wiretap order, obtaining e-mail records would require only a search warranta far less legally exacting process.

The decision received big play in the media. Newspapers weighing in with editorials that denounced the decision ranged from titans like the Washington Post and the New York Times to the 18,000-circulation Daily News-Leader in Staunton, VA. All criticized the narrow reading of the Wiretap Act. As the Register-Guard, an Oregon daily, put it: “If the language in the law needs tweaking, let’s not dillydally.”

Congress didn’t dawdle. On July 22, Rep. Jay Inslee (D-WA) sponsored the E-mail Privacy Act of 2004. Inslee’s bill proposes to amend the Wiretap Act to include “the acquisition of the contents” of an electronic communication through any device; it would permit Internet service providers to intercept e-mail only to the extent that “the access is a necessary incident to the rendition of the service.”

Inslee’s says his aim is to address “a loophole that would allow a significant invasion of privacy that would be stunning to most Americans. I wanted to jump on this thing right away.” Despite a filing late in the congressional calendar, Inslee says he hopes the legislation will find enough bipartisan support to move it through committee.

The proposed legislation properly addresses the heart of theCouncilman ruling’s confusion by redefining the meaning of what constitutes an interception, says Daniel Solove, an assistant law professor at George Washington University and an advisor to the Electronic Privacy Information Center.

Solove says he has been happily surprised by the new scrutiny to which the ponderous Wiretap Act has been subject. The convoluted law, sorely in need of updating, runs to 50 pages in printed form, leaving its details inaccessible to all but the most dogged legal observers. The outcry over the Councilmandecision is a welcome chance to review the law’s inherent difficulty adapting to new technologies, Solove says.

“I think it’s an opportunity,” he says. “This case seems to be driving home to Congress and to the media that, wait a second, this is serious stuff.”

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