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Appeals Circuit Ruling: ISPs Can Read E-Mail
leviramsey writes "The US Court of Appeals for the First Circuit (covering Massachusetts, Maine, New Hampshire, and Rhode Island) has ruled that e-mail providers are not violating the law by reading users' e-mail without the user's consent. The decision finds that the Wiretap Act does not cover interception of communications where the communications are being stored, not transmitted. Perhaps OSDN should send the defendant, accused in 2001 of reading users emails in order to find out what they were interested in purchasing from Amazon, a T-shirt from ThinkGeek?"
> It's like when you rent a house, the landlord may come by at any point and perform an inspection of the property.
I am not sure where you are from, but where I live, your landlord has absolutely NO RIGHT to come to your house - even for any kind of inspection. They are not even allowed to keep a copy of the keys. And if you find that he came to your home without your authorisation, it is considered breaking in and punished as a thief would be.
Thanks whoever, I am not living at the same place as you do.
This ruling is just plain wrong. Here's text directly from the Electronic Communications Privacy Act. Straight from the definitions:
(1) "wire communication" means any aural transfer made in
whole or in part through the use of facilities for the
transmission of communications by the aid of wire, cable, or
other like connection between the point of origin and the point
of reception (including the use of such connection in a switching
station) furnished or operated by any person engaged in providing
or operating such facilities for the transmission of interstate
or foreign communications for communications affecting interstate
or foreign commerce and such term includes any electronic storage
of such communication;
and then later...
(17) "electronic storage" means--
(A) any temporary, intermediate storage of a wire or
electronic communication incidental to the electronic
transmission thereof; and
So, it pretty clearly states that wire communications includes storage incidental to the communication, such as the email temporarily existing in RAM on a system before being sent. Given that RAM is typically volatile, I don't see how you could NOT call it temporary, intermediate storage.
There are no exemptions that I can find in the ECPA that might give this scumbag a way out of this. Either the judges are smoking crack, or the prosecutors failed to use the ECPA properly. I suspect it's more of the latter, as even the dissenting judge said that "the law has failed to adapt to the realities of Internet communications." This simply isn't true, because it's quite well defined in the law. The law HAS adapted to the realities of the Internet, and the ECPA is mostly quite adequate.
Here's a mirror of the full ECPA text for those curious:
ECPA text
Sorry, first time through all my quotation marks and apostrophes were swallowed.
There are many comments here about how the judges must be stupid and don't understand the technology, and that's why they ruled this way, etc. etc.
I find it obnoxious that many of the commenting /.ers apparently never bothered to read the opinion or try to understand what the court is really deciding and the grounds for their decision. The article submitter is himself one of the greatest sinners in this respect.
Listen to me. Unless you try to understand what the law is and how judges are supposed to apply the law and read this decision carefully, you are not giving them the level of respect that you expect them to give to you, the technical community. The judges work with a technically complex and intricate art, much like us programmers. Moreover, the judges' actions have profound consequences: they send people to jail and make people pay millions of dollars to each other with their pronouncements. That's an awesome responsibility. Do you really think they are "stupid" just because you may not understand their decision at first glance?
Let me try to explain what is going on in this case.
First, this is a criminal case. The government is charging the defendant ISp with violating the Electronic Communications Privacy Act ("ECPA") or commonly called the "wiretap act." In a criminal case, the courts try to construe the statute as narrowly as possible so that they make sure the government is only sending people to jail when it's clear that's what Congress intended. That the courts are careful in this manner is a good thing , if you value our freedom.
Next, the court looked at the statute carefully and found that it defines two types of communication: "wire communication" and "electronic communication." It then noted that the statute clearly gave different levels of protections for the two. Wire communication is given a lot more protection than electronic communication. Whereas "interception" of wire communications while in transmission and while in "electronic storage" is clearly illegal, only "interception" of electronic communication is made illegal. The statute made it clear that obtaining an electronic communication while it's in electronic storage is not covered as a punishable crime. Congress quite clearly meant for different treatment to be given to wire communication versus electronic communication. Electronic communication in electronic storage are just not covered by the statute.
Thus, the court ruled that the government couldn't prosecute the defendant under the ECPA.
THAT'S IT! Okay? That's all the court held. Just that the government can't prosecute the defendants under this particular law. They are not saying "ISPs Can Read Your Email" -- as the headline sensationally claims. They are not saying privacy is not important. They are not saying emails are equal to postcards. They are just saying that this particular law did not cover what the defendants did. That's all.
And quite honestly, the court is doing its job correctly. For the court to rule the way most of you would like here, the judges would be making law, and what's worse, making a criminal law. Most of us would be appalled by that idea. Congress should do so, not the courts.
Let me be clear, the judges here understood what was going on technologically very well. They recognize the force of your arguments and concerns about privacy, but their hands are tied. They lament, quite movingly, that "it may well be that the protections of the Wiretap Act have been eviscerated as technology advances" and go on to say, "We observe, as most courts have, that the language may be out of step with the technological realities of computer crimes." This is a clear call for Congress to do something about the problem.
They are interpreting the law as they should, and the ancient wiretap act clearly was made at a time when people didn't care much about "electronic communication" and it is our duty to convince Congress to change the law so that the courts will have the power to hand out justice to these privacy violators.