Re: Appeals Court Ruling Revives Case of Intercepted E-Mail

>> Bradford Councilman is former vice president of Interloc Inc., a rare

>> book dealer in Greenfield that offered a free e-mail service to >> customers. In 1998, Councilman allegedly began intercepting any >> e-mails sent to his customers by the Internet retailer >> Councilman and his colleagues allegedly read the messages to see what >> Amazon was offering his customers, so that he could make attractive >> counter-offers. >> A grand jury indicted Councilman in 2001 for violating the federal >> wiretapping law. Councilman urged dismissal of the indictment, saying >> that the wiretap law did not apply because the e-mail was intercepted >> while it was stored in the memory of a computer, not when it was >> traveling across a network. >> A federal district court agreed and threw out the indictment. The US >> Justice Department, which had brought the case against Councilman, >> appealed the ruling. But a three-judge panel of the US Court of >> Appeals in Boston also rejected the charges. Last year, the Justice >> Department persuaded all seven appeals court judges to hear the case. > It seems to me that they're using the wrong law. Doesn't the > Electronic Communications Privacy Act have provisions prohibiting > email providers from looking at customers' mail, except as needed to > provide the service (e.g. server administrators sometimes have to look > at mail to diagnose problems)? Why are they using the a wiretapping > statute, when he didn't actually intercept anything on the wire?

Maybe because the "unlawful access to stored communications" statute (sec. 2701) has a hole in it that you could drive a battleship through. *SIDEWAYS*.

It specifies that if you access the _facility_ in/on which the messages are stored, "without authorization", or "in access of authorization", and access/modify/delete messages, you have committed a crime. There is also a blanket exemption for any acts "authorized" by the owner of _the_ _facility_.

Sec 2511 is pretty clear that _it's_ prohibitions apply to messages 'in transit', especially when you look at how 'intercepting' a message is defined.

[TELECOM Digest Editor's Note: I am curious, but how can an email message be 'in transit'? Its either 'here' or it is 'there' or are they referring to the 30 or 45 seconds after the sender hits his 'enter' key (while the message travels on the wires from here to there via somewhere else) before it lands in my box, at which point I would think the 'in transit' stage has ended. Or does 'in transit' include the time it spends sitting on my ISPs server until I call the ISP and further retrieve it? I like to think of email as I would think of a traditional box at the post office. I am not standing there at the post office box 24/7 with the door open waiting to immediatly grab what is stuffed in from the clerk's side. Doesn't 'in transit' refer to the time one carrier is handling my letter from the point where it was picked up until it is placed in my physical possession? PAT]
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Robert Bonomi
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