E-mail wiretap case can proceed, court says

The 1st Circuit Court of Appeals, in a 5-2 vote, ruled on Thursday that an e-mail provider who allegedly read correspondence meant for his customers could be tried on federal criminal charges.

That decision reverses a 2-1 vote by a three-judge panel last year that raised alarms among civil libertarians and even sparked a flurry of efforts in Congress to rewrite wiretapping law in response.

Privacy advocates had warned that if last year's ruling by the 1st Circuit was left untouched, it could usher in more e-mail eavesdropping by the government. In a rare meeting of minds, the U.S. Justice Department also urged that the case not be dismissed. Lawyers for the defense, on the other hand, said that a broad reading of wiretapping law would open the door for prosecutions of Internet service providers performing normal business practices.

The case deals with an indictment of Bradford Councilman, formerly vice president of online bookseller Interloc, which is now part of Alibris.

Interloc provided some of its customers, typically dealers of rare or used books, with e-mail addresses ending in "@interloc.com." Councilman allegedly ordered the creation of a Procmail script, which saved copies of inbound messages from Amazon.com sent to those specialty book dealers, in hopes of gaining commercial intelligence. (Procmail is a popular Unix utility used for sorting and delivering incoming e-mail.)

At the heart of the case is whether such e-mail duplication violates the labyrinthine definitions embedded in the federal Wiretap Act, which governs the interception of "electronic communications." Because the law's definition can be interpreted to not cover e-mail stored in a mail queue, even temporarily, Councilman's lawyers argued that his alleged actions did not violate the law.

In Monday's majority opinion written by Judge Kermit Lipez, the First Circuit disagreed. The judges said that the "statute contains no explicit indication that Congress intended to exclude communications in transient storage from the definition."

"This is an important victory for online privacy," said Marc Rotenberg, director of the Electronic Privacy Information Center, which submitted a brief in the case. "It establishes a high standard for the interception of Internet communications even when they're in temporary storage."

A spirited dissent by Judge Juan Torruella accused his colleagues of judicial activism. "It is Congress' failure to provide (specific) language in its definition of 'electronic communication' that incites the majority into engaging in what I believe to be an unfortunate act of judicial legislation," he wrote.

"Our interpretation of the statute does not require that we assume that Congress contemplated the complete evisceration of the privacy protections for e-mail," Torruella wrote. Instead, he and a fellow dissenter said, privacy could be guaranteed by a simple contract between e-mail providers and their customers.

It's not clear what happens next. Councilman's attorneys at the Boston firm of Good & Cormier could not be reached for comment on Thursday. Their options include seeking Supreme Court review or resuming their arguments after a trial is held.

In a statement late Thursday, Rep. Jay Inslee, D-Wash., applauded the ruling. If last year's ruling had not been overturned, Inslee said, Internet service providers "could read consumers' e-mails more freely, and law enforcement could abide by fewer privacy protections in order to intercept such communications." Inslee co-sponsored one of the bills introduced as a response to the earlier court decision.

Orin Kerr, a law professor at George Washington University who also worked on a brief in this case, predicts that Congress may still move forward with some of its proposals to amend the Wiretap Act. (Sen. Patrick Leahy, a Vermont Democrat, even joined one of the friend-of-the-court briefs in this case.)

"The opinion is so narrow that it leaves work for Congress to do," Kerr said.