E-mail privacy suffered a serious setback on Tuesday when a court of appeals ruled that an e-mail provider did not break the law in reading his customers’ communications without their consent.
The First Court of Appeals in Massachusetts ruled that Bradford C. Councilman did not violate criminal wiretap laws when he surreptitiously copied and read the mail of his customers in order to monitor their transactions.
Councilman, owner of a website selling rare and out-of-print books, offered book-dealer customers e-mail accounts through his site. But unknown to those customers, Councilman installed code that intercepted and copied any e-mail that came to them from his competitor, Amazon.com. Although Councilman did not prevent the mail from reaching recipients, he read thousands of copied messages in order to know what books customers were seeking and gain a commercial advantage over Amazon.
Authorities charged Councilman with violating the Wiretap Act, which governs unauthorized interception of communication. But the court found that because the e-mails were already in the random access memory, or RAM, of the defendant’s computer system when he copied them, he did not intercept them while they were in transit over wires and therefore did not violate the Wiretap Act, even though he copied the messages before the intended recipients read them. The court ruled that the messages were in storage rather than transit.
The court acknowledged in its decision (PDF) that the Wiretap Act, written before the advent of the Internet, is perhaps inadequate to address modern communication methods.
But critics said the decision represents a huge privacy setback for e-mail users.
“By interpreting the Wiretap Act’s privacy protections very narrowly, this court has effectively given Internet communications providers free rein to invade the privacy of their users for any reason and at any time,” said Kevin Bankston, an attorney with the Electronic Frontier Foundation. “This decision makes clear that the law has failed to adapt to the realities of Internet communications and must be updated to protect online privacy.”
In his dissenting opinion, which contained a detailed description of how e-mail works, Justice Kermit V. Lipez wrote that Congress never intended for e-mail temporarily stored in the transmission process to have less privacy than messages in transit. And he acknowledged that “the line that we draw in this case will have far-reaching effects on personal privacy and security.”
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