* Latest in back-and-forth Interloc case
Interloc was a Massachusetts bookselling services company that, as part of its primary business, offered an e-mail service for its clients. Back in 1998, the company modified its mail-processing software to intercept messages from Amazon.com to its e-mail subscribers so that it could learn more about its competition and gain a competitive advantage. In late 1999, the U.S. Department of Justice prosecuted a former vice president of Interloc for violating federal wiretap statutes.
The District Court for the District of Massachusetts dismissed the federal government’s charges against the former vice president, since the Stored Communications Act allows an ISP to access its clients’ stored communications. Even though Interloc stored the messages only for a few moments, the rationale for the decision was that Interloc copied the contents of messages during the storage phase of their transit from Amazon.com to the recipient.
The federal government appealed the decision, but a three-judge panel for the First Circuit Court upheld the ruling. However, in late 2004, all of the judges in the First Circuit agreed to rehear the case, and earlier this month, the majority of the judges agreed that the former vice president can be prosecuted under federal wiretap statutes. If the U.S. Supreme Court does not agree to hear the case, it will be tried by the District Court.
What’s the point of this case? To me, there are two key issues at stake here.
First, the case points out the unintentionally capricious nature of some laws designed to solve technology-related problems. For example, in the law as it is currently written, if A sends an e-mail message to B and ISP C tries to intercept it, C is guilty of breaking wiretap laws if he intercepts it while the message is being transmitted on a wire or optical fiber into or out of C’s facilities, but not if the interception occurs while C stores the message in memory or on disk.
An “interception” of a message, therefore, is based solely on the physical medium in which the message exists at the time it is read by a third party, not on the intent of that third party (although the latest court decision in this case makes more sense than the laws as they are currently written).
Secondly, and more importantly, this case is important because state and federal wiretaps are increasing significantly, and this case should bring some clarity to current laws regarding e-mail wiretaps.
