Maybe you shouldn’t digitize your communications

In a ruling that flies in the face of common sense, the U.S. Court of Appeals for the First Circuit ruled in late June that it would not be illegal for AOL, Hotmail or any other commercial or non-commercial e-mail service provider to read your mail.

In a ruling that flies in the face of common sense, the U.S. Court of Appeals for the First Circuit ruled in late June that it would not be illegal for AOL, Hotmail or any other commercial or non-commercial e-mail 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, U.S. vs. Bradford C. Councilman, Councilman was accused of intercepting e-mail sent from Amazon.com to subscribers of an ISP that he ran. He was accused of doing this because he also was in the book-selling business and he thought he could get information from these e-mail messages that would help him in his business. Councilman argued that intercepting e-mail messages the way he was accused of doing did not violate the U.S. federal wiretap law because that law did not cover electronic communications that were in temporary storage. In this case 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 they felt “that Congress meant to give lesser protection to electronic communications than to wire and oral communications.” The opinion 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-to-1 decision and the very well written dissenting opinion by Judge Kermit Lipez basically said the majority misunderstood the intent of Congress. The dissent also pointed out that, under the majority view, all types of electronic communication, not just e-mail messages, legally can be intercepted. 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 e-mail, it would also be legal when it comes to packets in a router buffer. Lipez said he found it inconceivable that this was Congress’ intent 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 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 already should 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. The above advice is from me, not Harvard.