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'?

While the packets are *on*the*wire* between the sending (origin) system, and the receiving (destination) system.

Its either 'here' or it is 'there'

That is *NOT* the case.

It has to _get_ from 'here' *to* 'there'. That does not occur 'by magic'.

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?

No, 'in transit' does *not* include the time when the message is just sitting 'on disk', anywhere.

If you tap the _wires_, and intercept the message _while_it_is_being_ _transmitted_ that is one thing. If you read the message while it is in storage, that is a totally *different* thing.

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?

Short answer: NO.

Factious illustration. You're 'on the road', from Chicago to Dallas. You stop for the night at a motel, And get all sorts of rambunctious, careless, etc. -- doing things that endanger yourself, and others.

Even though you are 'on the road', you cannot be charged with 'reckless driving' for those activities, because you were not travelling on the roadway.

The statutes don't actually use the language 'in transit' to describe the situation. The statutory language is a 'wire' communication. If it isn't _on_the_wire_, because it has already reached the destination, (or because it hasn't started transmission yet) it isn't a wire communication.

If you commandeer a semi truck on the road, between start-point and end-point, that is 'hijacking', If you break into the warehouse at the terminal, and steal the load, that is 'theft'/'burglary', *not* hijacking.

Wiretap statutes are similar. If you hijack (or copy) the message while it is 'on the wire', that's wire-tapping. if you break into a telephone answering machine (or voice-mail system), and get it to play back a previously recorded message, that is something *entirely* different.

The same logic applies to e-mail. 'on the wire' _between_ sending and receiving servers is one thing; getting it from storage on the server is something quite different.

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Robert Bonomi
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