Justice Dept fighting for privacy rights alongside EFF and CDT in Councilman case

Remember that disastrous, but not surprising, Councilman decision? Here's what you need to know. It was the one in which the 1st Circuit Court of Appeals ruled that ISPs can spy on their users by copying a user's incoming email messages to their own mailbox.

The case centered on Bradford C. Councilman, an online bookseller who offered his customers free e-mail accounts and then sifted through e-mails from Amazon.com to his customers.

The dismissal of the case was based on the regular (but ridiculous) reading of the Wiretap Act so that to illegally "intercept" a communication it must be en route, as opposed to "stored." Obviously in a digital world in which communications are exchanged (traveling) so quickly they cannot be "intercepted."

So essentially all emails are considered to be "stored" and therefore it is ok for anyone to read them. Pretty ridiculous, the interest being protected by this reading of the Wiretap Act was that of law enforcement. A statute as old as the Wiretap Act (enacted in 1968) really just can't deal with a digital world.

A three-judge panel from the 1st Circuit Court of Appeals upheld the dismissal, arguing that the wiretap law did not apply since the e-mails were stored, even if only for seconds, on Councilman's computer.

Apparently even the Justice Dept. thinks this ruling went too far though. They are fighting the ruling, along with the Center for Democracy and Technology, the Electronic Frontier Foundation and the American Library Association. That doesn't happen often, usually these groups are suing the Justice Dept. Well, I suppose we can all agree on some things.

Here's the EFF amicus brief. Here is an article in WIRED from today, from which I cited above. Here's aWIRED article about the original dismissal.