| Subject: Court rules that servers can read your mail |
Author:
Betty
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Date Posted: 11:13:00 07/06/04 Tue
In reply to:
Betty-repost
's message, "PCs infested with 30 pieces of spyware" on 11:05:02 04/16/04 Fri
Upholding a lower-court decision that the provider did not violate the Wiretap Act, the 1st U.S. Circuit Court of Appeals set a precedent for Internet service providers, or anyone else, to legally read e-mail that passes through a network.
The court ruled (PDF) that because the provider copied and read the mail after it was in the company's computer system, the provider did not intercept the mail in transit and, therefore, did not violate the Wiretap Act.
It's a decision that could have far-reaching effects on the privacy of digital communications, including stored voicemail messages.
In 1998, Bradford C. Councilman was the vice president of Interloc, a company selling rare and out-of-print books that offered book-dealer customers e-mail accounts through its website. Unknown to those customers, Councilman had engineers write and install code on the company network that would copy any e-mail sent to customers from Amazon.com, a competitor in the rare-books field.
Although Councilman did not prevent customers from receiving their e-mail, he read thousands of copied messages to discover what books customers were seeking and gain a commercial advantage over Amazon. Interloc was later bought by Alibris, which was unaware that Councilman had installed the code on the system.
Councilman wasn't caught because customers complained about his actions; a tip about another, unrelated issue led authorities to discover what he had done.
But just what had Councilman done that was so bad?
Everyone knows that e-mail is an insecure form of communication. Like a postcard, unencrypted correspondence sent over the Internet is open to snooping by anyone.
Additionally, companies have the right to read their employees' e-mail, since the companies own the computer systems through which the correspondence passes, and employees send the mail on company time. And ISPs scan e-mail for viruses and spam all the time, before delivering the mail to the provider's customers.
But there is an expectation that service providers will access communications only with permission from customers, or when they need to do so to maintain their network.
Last month Google launched an e-mail program called Gmail that gives customers 1 GB of e-mail storage in exchange for letting Google's computers scan the content of incoming e-mails to seed them with related text ads. Gmail customers agree to let a computer read their e-mail.
In contrast, Councilman personally read customers' messages to undermine his competitors' business. He did so without customers' permission and with the knowledge that if his customers found out, his company would likely lose their business.
And yet the court found him innocent of violating the specific law under which authorities charged him.
The court ruled that because the mail was already on Councilman's computer network when he accessed it, he didn't intercept it in transit and therefore was not guilty under the Wiretap Act. The court said the mail was in storage at that point and, therefore, was governed under the Stored Communications Act.
In a similar case in 1991, the U.S. Secret Service seized three computers belonging to a company called Steve Jackson Games. The company, in addition to producing fantasy books and games, hosted an online bulletin board for gamers to communicate with one another. An employee of the company was under suspicion for activities conducted outside work, but the Secret Service confiscated his employer's computers as well. The Secret Service accessed, read and deleted 162 e-mail messages that were stored on the computers used for the bulletin board.
In a suit filed by the game company against the Secret Service, a federal district court found that while the Secret Service agents did not intercept the e-mail, and thus violate the Wiretap Act, they did violate the Stored Communications Act.
Pete Kennedy, the lawyer from the Texas-based firm that litigated the case, called the decision "a solid first step toward recognizing that computer communications should be as well-protected as telephone communications."
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