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Maybe you should not digitize your communications

By Scott Bradner

In a ruling that flies in the face of common sense, the Unites States Court of Appeals for the First Circuit ruled in late June that it would not be illegal for the good folks at AOL, Hotmail, or any other commercial or non-commercial email service provider to read your mail. The logic, if that is what it should be called, followed by the court in this case could have far more serious implications if this ruling is upheld or congress does not reword the wiretap law to make it less possible for a court to ignore the law's clear intent.

In the case, United States of America v. Bradford C Councilman, Councilman was accused of intercepting email sent from Amazon.com to subscribers of an Internet service provider Councilman ran. He was accused of doing this because he was also in the book selling business and he thought he could get information from these email messages that would help him in his business. Councilman argued that intercepting email messages the way he was accused of doing did not violate the US federal wiretap law because that law did not cover electronic communications that were in temporary storage, as the messages were in this case since the messages were temporarily stored on disk waiting for a user to retrieve them. The argument hinged on a wording difference between the definition of "wire communications" and "electronic communications" in the wiretap law. The definition of wire communications includes "electronic storage" of communications but the definition of electronic communications does not include the "electronic storage" language.

The trial court judge accepted Councilman's argument as did the Appeals Court. The majority opinion in the Appeals Court said that they felt "that Congress meant to give lesser protection to electronic communications than to wire and oral communications." (http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=03-1211.01A) They did note that, under their interpretation, "much of the protection [of the wiretap law] may have been eviscerated by the realities of modern technology." The Appeals Court decision was a 2-1 decision and the very well written dissenting opinion by Judge Lipez basically said that the majority misunderstood the intent of congress. The dissent also pointed out that, under the majority view, all types of electronic communication can legally be intercepted, not just email messages. This is because all types of electronic communications are broken up into packets for transmission through the network and such packets sit, at least for a while, in buffers in routers. If copying data from a temporary buffer is legal when it comes to email, it would also be legal when it comed to packets in a router buffer. Judge Lipez said he found it inconceivable that this was what Congress intended when they wrote a law to protect the privacy of communications.

This opinion is certain to be appealed and maybe higher-level courts will be more persuaded by Judge Lipez 's analysis than by the word nitpicking of the majority. In any case it would be a good idea for congress to remove the ability for such nitpicking to obscure the clear intent of the wiretap law. In the meantime maybe you should take this as another reason to seriously look at encrypting your Internet communications (which you should already be doing in many cases).

disclaimer: I did not check to see if the Harvard Law School has a class in obscuring the clear intent of laws but it does seem like a useful defense attorney skill but the above observation and advice are from me not Harvard.