More on US v. Councilman

Yesterday I did a post on the recent U.S. v. Councilman decision in the First Circ. in which the court ruled that ISPs could intercept and read users' emails.

Even the New York Times thought the decision was worthy of a scathing op-ed piece, which appeared today.

Count us among the shocked. The decision, on a 2-to-1 vote by a panel of the United States Court of Appeals for the First Circuit in Massachusetts, sets up a frightening precedent, one that must be reversed by the courts, if not the Congress. It's true that people are aware of some limits on online privacy, particularly in the workplace. But the notion that a company like America Online, essentially a common carrier, has the right to read private e-mail is ludicrous.

Americans' right to privacy will be seriously eroded if e-mail is not protected by wiretap laws. The implications of this erosion extend beyond the commercial realm. The government will also find it easier to read your e-mail if it does not have to get a wiretap order to do so. Congress ought to update the law to make it clear that e-mail is entitled to the same protection as a phone call.

I find the strong reaction to the Councilman ruling odd based on the fact that this result was completely predictable based on former interpretations of the Wiretap Act in Steve Jackson Games, Inc. v. United States Secret Service. There the court held that the Wiretap Act does not apply to electronic communications in storage, but only when they are being transmitted (as if it is possible to intercept an email while it is jumping from server to server in the form of packets).

If I recall correctly from my Cyberlaw class with Susan Crawford: It is thought that the Stave Jackson decision was made largely for law enforcement purposes, to allow the Gov't easy access to electronic messages. Because electronic messages in storage fall under Title II of ECPA (the Stored Communications Act) concerning stored communications the Gov't need only get a search warrant to obtain the communications. If electronic communications "in storage" were considered to still be "in transit" to the addressee then they would fall under Title I of ECPA (the Wiretap Act) and the Gov't would have to obtain a court order to get the communication, which is more difficult to get than a search warrant.

Essentially the Coucilman decision relied on established precedent, although there is other precedent the court could've utilized (check out the Konop case). It is clearly time for Congress to act on the electronic communications issue because the old Wiretap Act really can't be twisted to work well with newer technology. At least not in such a way as to protect the privacy of typical Web users. Even the Court notes in the opinion: "It may well be that the protections of the Wiretap Act have been eviscerated as technology advances."