Thursday, July 01, 2004

Appellate Court: ISPs can spy on user's email to gain commercial advantage

In U.S. v. Councilman the First Circuit recently ruled that is was ok for an ISP (in this case a bookseller who provided email service) to have email sent to its users copied and sent to them as well. The ruling means that email providers can take and read your email without your consent or knowledge.

This decision interprets the privacy protections of the Wiretap Act very narrowly. Here, the defendant bookseller was checking out the emails sent to his customers from his competition (Amazon in particular) in order to gain knowledge of their preferences in books and to keep an eye on the competition. The decision indicates that any email provider can fully spy on their users without permission and without liability.

The reasoning for the finding concerns the nit-picky statutory interpretation of the Wiretap Act. The snooping here did not violate the Wiretap Act because at the instant that the e-mails were copied, they were considered to be in storage, not in transit. In order to violate the Wiretap Act one must intercept the communication at the time it is in transit, which we all know, with email and other internet communications, is nearly impossible. Since internet communications typically are copied and stored on servers, awaiting the addressee, they are all pretty much up for grabs according to the Wiretap Act. This interpretation isn't new, but it is all the more disturbing in the age of the Internet. The Wiretap Act is very old (passed in the 1968 I believe) and has not been able to keep up with changing technology. Maybe it is time for a change in light of this recent ruling?

Decision here.

More at the EFF.


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