WASHINGTON-The U.S. Court of Appeals for the 1st Circuit has agreed to rehear a case that potentially created a loophole in e-mail privacy.
“The 1st Circuit has dealt a serious blow to online privacy,” said Sen. Patrick Leahy (D-Vt.) on the floor of the Senate following the June 2-1 decision. “If allowed to stand, this decision threatens to eviscerate Congress’s careful efforts to ensure that privacy is protected in the modern information age.”
The Center for Democracy & Technology joined with the Department of Justice in urging that the decision be reviewed. Now the entire court will hear the case en banc. Oral argument for USA v. Bradford Councilman is scheduled for Dec. 8.
“The 1st Circuit ruled that an e-mail provider does not violate federal wiretap laws when it opens e-mails to its customers and uses them for its own competitive business purposes,” said CDT in July. This “interpretation of Internet privacy laws if more broadly accepted would weaken protections for real-time communications over the Internet.”
The June decision said that because e-mails are temporarily stored on an Internet service provider’s server, the communications is considered “a stored communication” rather than immediate communication, which requires court authorization for a wiretap.
“Since digital transmissions are stored in RAM or on hard drives at each step along their path while computers process them and send them on their way, all e-mail would fall outside the strict rules of the Wiretap Act. This has significant privacy ramifications with regard to both law enforcement and ISP access to Internet communications,” said CDT. “With a search warrant or subpoena, the government is only supposed to get whatever the service provider has in storage at the time the order is executed. Even the Justice Department has always assumed that ongoing access to Internet communications requires a wiretap order. The 1st Circuit’s decision called that interpretation into question.”
Even though the 1st Circuit will be re-evaluating the prior decision, there now appears to be a loophole in wiretap law so earlier this year a bi-partisan group of House members introduced the E-mail Privacy Act of 2004. The bill, which does not appear to be advancing in the closing days of the congressional year, would ensure that law enforcement obtain court authorization and that ISPs cannot read and use customer e-mail unless to protect its network or with prior consent.<
