Feds try again for wiretapping conviction

Justice Department asks appeals court to review a decision clearing an e-mail provider of snooping--and civil liberties groups are backing it up.

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
2 min read
The U.S. Department of Justice has asked a full appeals court to review a controversial ruling saying an e-mail provider did not violate federal wiretapping laws by allegedly reading messages meant for customers.

In an unusual twist, civil liberties groups are joining the government's request to the full 1st Circuit Court of Appeals to revisit a three-judge panel's decision in June that cleared Bradford Councilman, formerly vice president of online bookseller Interloc, of federal wiretapping charges.

Both legal briefs say that the 2-1 ruling sets an unfortunate precedent that effectively creates an unintentional loophole in Internet wiretapping laws--at least in the New England states that make up the 1st Circuit.

"Internet service providers would be free to access the private e-mail of their customers without criminal liability (and) criminals and corporate spies could monitor private e-mail without violating the Wiretap Act," warns the government's brief, filed last Friday. "Under the rule adopted by the panel, (digital) phone calls could be captured without violating the Wiretap Act."

The brief filed by the civil liberties groups on Thursday also sounds a solemn warning: "The panel's approach guts (privacy) protections. It would allow federal, state or local law enforcement agents to install monitoring devices that impose the functional equivalent of a wiretap without needing to satisfy the Wiretap Act."

The Center for Democracy and Technology, the Electronic Frontier Foundation, the Electronic Privacy Information Center, and the American Library Association joined the amicus brief.

In this case, Councilman provided his customers, typically dealers of rare or used books, with e-mail addresses ending in "@interloc.com." Councilman allegedly ordered the creation of a simple computer program that surreptitiously saved copies of inbound messages from Amazon.com sent to those specialty book dealers.

The panel's majority concluded that because the interception happened when the messages were stored on a hard drive--even temporarily--rather than in transit, Councilman did not violate the Wiretap Act. Depending on the number of messages being processed at one time, a mail server may take anywhere from a fraction of a second to more than an hour to deliver e-mail.

Though federal wiretap prohibitions may arguably be "out of step with the technological realities of computer crimes," the court said, making any changes to such prohibitions was up to Congress. One such bill already has been introduced.