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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?"
More words: This most certainly has to be overturned on a privacy bill of some sort. Imagine the widespread mail-reading that is now determined -at least in the mentioned juridstictions- to be legal. I wonder what ever happened to the privacy laws and how they match up to this new ruling (the ones that say a conversation is deemed to be confidential and cannot be disclosed outside of the circle in which it originated?)
I completely agree with "And he acknowledged that "the line that we draw in this case will have far-reaching effects on personal privacy and security."
... to start using strong crypto for our email? The technology has been available for free for years now, so what's stoping us? Why this inertia?
There are people that don't run their own mail servers? Well, I suppose that might change now.
We don't need to say that this is like opening postal mail, or that RAM holding the email temporarily is like a modem caching the data. We don't need to compare this to anything to explain it.
It is plainly and utterly stupid and wrong.
Enough said.
Aide-toi, le Ciel t'aidera - Jeanne D'Arc.
google isn't an ISP :D
If ISPs are not breaking any laws reading users stored email without consent, then why was there a huge fuss about Google using a parsing engine to do the same?! I would have thought that a parsing engine was more in line with privacy than someone reading your mail!!
I feel a tremendous schizm forming within the ranks of the American Legislature over this, with one side determined to force restrictions upon 'publicised' companies in an effort to make names for themselves, while the other side making rulings like this that will bearly make the main press. Something tells me not everyone is singing off the same hymnsheet.
Something died a little today. That something was common sense.
Oh god now they will know about my massive addiction to penis enlargers! seriously i don't use my isp account for anything important if they wanna know about penis enlarging treatments go fer it.
For The Best Jazz/Hip-hop fusion > COlD DUCK
If ISPs can read your emails, that stops them from being a common carrier anymore doesn't it? Which then means that they could be held legaly liable for any damages caused by illegal activity via email couldn't they?
T Money
World Domination with a plastic spoon since 1984
Email is plain text. clear text. not encrypted. Now if this covered IPS right to read their users mail if it were encrypted, then that would be something else.
It's clear text though, what do you expect?
encrypt it
I think it may be a good time for people to start looking into ecryption.
Even the samurai
have teddy bears,
and even the teddy bears
get drunk
Fortunatly...
:-))
1) I'm not in USA;
2) I use gpg;
3) I'm wearing that t-shirt.
This is just as wrong as stupid: makes me remember how 2600 lost in court making links to illegal stuff illegal, when, after, others won in the same court prooving linking is just linking, not illegal (good for Google
It's frustrating when we clearly see that the laws are just bendable...
Mind Booster Noori
The decision finds that the Wiretap Act does not cover interception of communications where the communications are being stored, not transmitted
So now the loophole is telecomms carriers can store messages, and by storing messages they're allowed to listen to them.
Of course, it's no use just to listen to a message to get info on what a subject is up to, it has to be stored for later use, so simply the fact of listening in to a phone conversation and recording it for later use makes it legal to listen to and store for later use.
bah
And to those who think encrypting your email is the answer - it's not. The email sent to you can still be read, and many sites like Amazon, which is mentioned in the article, send automated emails to whatever address you provide them, making your communications easy pickings for unscrupulous ISPs.
Of course, on the other hand, I'm sure some people here won't be surprised, and will in fact welcome such intrusion into their email, as evidenced by the enthusiasm here and elsewhere in geek circles for Google's Gmail service, which at least as intrusive and does the exact same thing with a user's emails (i.e. reads them for the purposes of marketing other products they think the user would be interested in). I'm still not sure what causes this cognitive disconnect in the technical community, but it is both puzzling and worrisome.
Software piracy is victimless theft.
will be using Ray Romano's encryption scheme:
I ehat het su ourtc fo ppealsa!!
It's time to start skimming the gene pool
And to think I used to read all the cute girls emails at school when I was a temp sysadmin... it was all legal! w00t... I wonder if the extortion I did using the information I gleaned from their emails was equally as legal... oh well, I guess I'll never know... besides, how else is a geek supposed to get action in highschool? :P
---
Programming is like sex... Make one mistake and support it the rest of your life.
grep -i -n -A 3 username * > password_list
thanks for that
There are places where the networks are not touching,and there are places where they are-Boeing's Lori Gunter
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.
In a way, I suppose, this ruling is a good thing, because it underscores the need for a comprehensive privacy and data retention law.
What's needed is something along the lines of The European Union's privacy law: that is, something that is explicitly mandated, rather then the "penumbras" of privacy that some judges can, and some judges won't, see lurking between the lines of the Ninth Amendment.
We can hope that this defeat in the courts can be -- with our hard work -- turned into a victory in the U.S. Congress.
Opinions on the Twiddler2 hand-held keyboard?
Simply include a picture of the goatse guy or tubgirl in every email and they will be sorry they ever read it.
I Am My Own Worst Enemy
Email is not mail it's a post card at best. I see peoples mail regularly as part of work as it's going down the wire, it's not illegal as I'm performing maitence and troubleshooting for the companies that own the routers. Same goes for a random sys admin that needs to say fix an email box or generaly run the system. Your service provider has allways been able to do this. The post office can read your mail if they need to what do you think dead letter offices are for? Dont like it encrypt the contents and use anon remailers.
No sir I dont like it.
I'm speaking here about an average user, rather than the tech-saavy crowd that populates Slashdot.
Software piracy is victimless theft.
Wow, that got me thinking. ISPs are not held liable for piracy, hacking, etc, because they are a "common carrier." Common carriers have no knowledge of the traffic they carry, they are simply moving things from point A to point B. That limits their liability.
Now, though, the court (in those jurisdictions) has ruled it is legal for ISPs to, at the least, read e-mail. Since it is ruled legal, and they are able, does that confer some responsibility to them?
Thinking this through to conslusion, what are the odds that the ISP defending itself in reading the e-mail, has in fact increased its liability in all things its customer's do and have done to them?
Sarcasm and hyperbole are the final refuges for weak minds
And what about the ECPA provision on unauthorized access to stored communications (Steve Jackson case)? Don't they apply here?
I don't think the judge understood what he was saying. In ruling that email messages are being stored, not transmitted he completely ignores the fact that the only reason that email is sent to an ISP is so that it will be transmitted. The asynchronous method of delivery really shouldn't enter into it. However, if that is the language of the law, then that is that...
This ruling would also mean that you voicemail at your cellphone provider is wide open to being listened to as well... Nice...
Lets try to be a little rational here. I know that everyone is going to scream in the typical slashdot style about "invasion of privacy!!!!!", but lets really look at the problem.
The first thing is to understand what the Judicial Branch's job is. It is to interpret the meaning of existing laws! And looking at the law, it seems that they did a pretty good job of this.
So does this mean that I want my ISP's reading my email? Of course not!
The problem is that the legislative branch is not creating laws that keep up to speed with the ethical problems presented by technology. Lets not get on the Judges' cases for the ISPs reading our email, get on the LEGISLATORS.
In fact, I want to congratulate the judges in this case for making the ruling. Even though it is obvious that it is absurd that the ISPs are reading people's email, the judge did not overstep his authority by trying to create laws, rather than interpret them. This is one of the largest tyrannies that happens in US Politics, judges effectively creating legislation.
So here is a call to all legislators: GET ON THE BALL! New technology has created many new ethical dillemas, and we need the legislators to start dealing with them.
Wow. This is a huge, huge, huge deal.
Among other things, this means:
* Email, the dominant form of online communication, which most of us have regarded as fairly secure, is now grabable by federal authorities or police *without a warrant*.
* Your employer may now read all your email -- previously, he had to at least inform you that he was going to monitor your network traffic ahead of time (admittedly, including such a clause in the usage policy was depressingly common, but still).
* Free email providers like Yahoo, Microsoft, and Google now are free to do anything they want with all the mail that you've ever sent or has been sent to you.
I'm sure that the EFF is scrambling to try and do something at the moment -- it'll be their most important case yet.
*IF* this is not overturned, it means that it is *impossible* to have legal privacy protection for any form of communication that is asynchronous across hosts. This affects a vast number of potential protocols.
This means that voicemail systems are *not* protected by federal wiretapping law. If you *ever* leave a message for anyone, your privacy protections are out the window.
It's debatable over whether or not this applies to web caching -- if police and federal agents can now swipe the content of your ISP's web cache (yeah, the transparent proxy that your cable ISP uses, even though you don't think you're using a proxy), they can obtain web browsing data without warrant.
This is the biggest argument I've seen yet for use of PGP. If you are not using PGP, you *have* no privacy.
May we never see th
Now my ISP will know I have a small penis, credit card debt, hair loss and can't function sexually.
Chris.
I ask for a car and I get a computer. How's about that for being born under a bad
The decision finds that the Wiretap Act does not cover interception of communications where the communications are being stored, not transmitted.
That's nice. So now they can use this precedent to listen to your voicemails.
And if we move to VoIP on the telecom's backbone, then they can listen to your conversations... since it is being stored in the router's buffers alone the way.
so is there anyone out there who actually thinks your email to me is actually private and won't be read by an admin of a server that queues it for delivery somewhere along the way??
it's email. there should not be any real expectation of privacy. deal with it.
"We are not tolerant people. We prefer drastically effective solutions"
There's a minor problem with your argument. ISP's are not common carriers
http://www.cctec.com/maillists/nanog/historical/00 10/msg00012.html
Maybe this ruling will finally convince people to use freely avaiable encryption. I PGP as many messages as I can (I don't have anything to hide, I just don't like the idea of people snooping on me), but not many of the people I email use PGP.
"Do I dare disturb the universe?"
Suddenly, ISP-run antivirus filters and spam filters could make them liable for invading people's privacy. After all, even though these filters are automated, the server admins need to be able to verify they are working correctly.
Plus, if nobody is allowed to read the mail, what about automated data miners? It's a slippery slope in both directions.
What about analog signal delay chips? What about digital phone systems that temporarily store signals in RAM? And if volatile memory is considered transmission instead of storage, what if they used MRAM in the future?
Others summed it up with "stupid", but "stupid" just doesn't seem to come close.
I'll bet some ISPs are madly looking at what they have that they could market to the tabloids. Anyone out there have some Senators or Representatives as clients? Publishing all of their email might get a law out quicker than you can say "stupid".
I know Mr. Councilman. He was a selectman in the town of Montague, MA and ran an ISP (www.valinet.com). The ISP was initially running on DEC Alphas and one day it went poof. It came back the next day running Linux on intel. The ISP claimed they went down due to a software upgrade gone wrong. What really happened was the FBI raided their office and took all of the hardware. I remember the call from the FBI agent in charge when he wanted to have me look over some files they found on the computers. It turns out that not only was Mr. Councilman reading peoples e-mails, He was also hacking into all of the other local ISPs to steal their customer lists. The FBI agent showed me a particial list of my /etc/passwd file. I could date it by looking into billing to find when the customers were created. I remember sitting in small claims court trying to get money from a customer when our servers crashed because of his hacking. I remember when Mr Councilman forwarded my CERT report of the event to a local newspaper and I recieved a call by an over zealous reporter. I remember when he was arrested and fined $250,000. I thought it was sweet justice for the greif he caused me and the other ISPs in the area. Mr. Councilman is not only a theif but a hacker. It is a shame that all he got was a slap on the wrist. His old ISP was purchased by another company and is still around. They purchased it about a month before the arrest.
I really wished he saw some jail time. The guy is a jerk.
As the original submitter, I've seen nothing to indicate that the ruling does not cover those who provide internet connectivity. As far as the law is concerned, providing e-mail makes you an ISP.
Perhaps, in hindsight, it may have been more clear to say something like "e-mail providers" or "e-mail server operators."
The ruling is essentially that any operator of an e-mail server may read at their discretion any e-mail stored on said server. There's no distinction between, say, Comcast or Verizon and Hotmail for this purpose.
Seems like the charge under the Wiretap Act was not enforceable, but a charge of violation of the Electronic Communications Privacy Act should be:
t ml
http://www4.law.cornell.edu/uscode/18/pIch119.h
Why didn't they t also charge a violation of the ECPA? Seems like the ISP would have gotten slammed into the ground on that one.
ISPs can read e-mail? Finally. Now maybe someone at an ISP will reply to the several dozen "One of your customers is sending me spam" messages. It's about time ISPs got around to reading e-mail.
Now to read the article ...
And anyone who thinks it is illegal for the mailman to read postcards he is delivering is deluding himself.
"I do not agree with what you say, but I will defend to the death your right to say it"
Okay Thunderbird, here's your chance to shine. Make sending and receiving of encrypted e-mail as easy as regular e-mail is now.
"It's the height of ridiculousness to say for those 9 lines you get hundreds of millions."
I wonder if ISPs can now be held responsible for what passes over their network? An interesting collision between their Common Carrier status and their ability (perhaps implying responsibility) to read email.
Wouldn't this automatically solve Gmail's potential legal problems, at least within Fifth Circuit jurisdiction?
Now all we need is the Nineth Circuit ruling the same thing... ;-)
I'm surprised that more people haven't mentioned this.
Microsoft Windows is, fittingly, the official Desktop OS of Olig
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
Actually, if insurance or medical records are involved, HIPAA laws apply and the fines are big enough to make any company shudder.
I tell you, if a company discloses any personal info of mine even with a subpeona involved, they can expect one heck of a long and vicious lawsuit.
[RIAA] says its concern is artists. That's true, in just the sense that a cattle rancher is concerned about its cattle.
From a recent post on NANOG:
/etc/passwd file (this was hacked from me back in '95,'96). I was happy when the arrested him, he is a jerk. The ISP he ran has since been sold to another company, still local and run as an honest business.
Date: Wed, 30 Jun 2004 17:35:54 -0400
From: Matthew Crocker
To: "'nanog@merit.edu'"
Subject: Re: E-Mail Snooping Ruled Permissible
I know Brad Councilman, This all happened in my back yard. He ran a competing ISP with me (www.valinet.com). Not only was he reading his customers e-mail and harvesting Amazon.com orders he also hacked into 4 of the local area ISPs. I still remember the day I received a call from the FBI office in Boston. 'Sir, you are not in trouble but we would like to talk to you about an important matter. I'll be out tomorrow, when will you have time?' He came in with a old copy of my
Sorry for the rant, I just wish he got more than a slap on the wrist. They didn't prosecute him on the hacking attempts because the e-mail theft was a bigger crime.
Grrrrr
-Matt
I disagree. I was a big proponent of PGP back in the old days (mid-90's). Back then, it was more cumbersome than complicated. Regardless of the effort to set it up, it still required too much effort on my part to encrypt or sign or decrypt each and every message. My circle of co-workers, contractors, and friends gave up on it after a short while.
Recently, I have begun using Enigmail with GPG. It integrates quite nicely with Thunderbird, and I assume it would with Mozilla as well. We use it companywide, with Macs and PCs (ie OSX and Windows), and we convinced a contractor that uses Linux to use it as well.
While the initial configuration did require some degree of effort, it was not too tough. Encrypting, decrypting, signing, and verifying is almost automatic now, requiring very little effort per message. My PGP (I mean GPG) password is queued for 15 minutes, so from time to time I have to re-enter it. All my messages are signed, and if the recipients are in my keychain, it is encrypted as well.
I think if it is set up by a Slashdot-type person (and let's face it-- that's what most of us are paid to do), an "average" user should have no problem with it.
Thank the Gods!
In Canada, it is not legal for a company to read your private email, as email is treated like snail mail. This applies even if they are your employer!
I really hope the US courts get a clue about privacy!
ttyl
CAN-CON 2019 - Ottawa's only book oriented Science Fiction Convention! October 18-20, Sheraton Hotel, Ottawa, Canada h
At all points in a digital communication the packets composing the message are stored in the memory of the devices involved in transmission (albeit for a short period of time). So does this mean that the wiretap law does not apply to any form of digital communication other than point-to-point where the end-points are owned by the communicating parties? It's fun when non-technical people create laws about technology....
I feel like starting an ISP and offering free email accounts to congressmen, judges, FBI agents, etc...
The time difference between an embarrassing email leak and legislation outlawing reading another's email is left as an exercise for the reader....
The society for a thought-free internet welcomes you.
Judging by my Yahoo inbox, all they will get from this is the world's most gigantic penis.
sic transit gloria mundi
The USAPATRIOT act reworded to wiretap laws so that stored electronic communications are no longer protected, as in emails or depending on how you read it, even packets in a queue. The suspected purpose of this is to enable interception of data on a network by law enforcement without the need for a wiretap. This effectly renders the entire wiretap law null, so long as law enforcement is willing to jump through the right hoops, which are now technical rather than judicial. The couple sentences of the Patriot act that did this were perhaps the most significant in the entire document, but so benign in appearance that they would be overlooked by many and the act would be passed by congress. Today in the USA, protections against nearly all the forms of privacy invasion that we had just 5 years ago are now mostly just illusions. Every privacy law I know of now has some loophole which allows the government to circumvent requirements of probable cause and judicial approval. This is why we should not reelect Bush. I was a registered Republican in 2000, but they are not looking out for any of us.
Notice that many router manufactures (eg Cisco) have plans to integrate lawful interception features into their products, in anticipation of future demands of the US or other governments.
We- the technical community- can demand a similar switch for email. Unfortunately the use rate of encryption for email is ridiculously low (less than 10% of incoming to Diffie or Zimmerman, they once said). So we've ended up in this strange zone where email could be encrypted as a matter of course, but it isn't. There is no inherent reason why email has to be public, but by our design (or lack thereof), this major massive system of communications is practically (and with this ruling- legally) public, and for what benefit? Why do people so casually accept the non-privacy of email? Its like we were still using party lines 120 years later.
At the core of it, because privacy is a fundamental human right every communication system we use should have privacy built in. If its not, there should be a very good reason why not. "Oh no, it will take extra computational cycles" is not a good reason (not with crypto like ECC around). "Oh, Ashcroft doesn't want it" is even a worse reason. "Perfect encryption is too hard for the public to use": also bad.
Crypto does need to become easier to use. As Templeton wrote here on what email crypto needs:
Problem is, the current UI and ease of use for encryption add-ons aren't so good. It makes it a tough choice to use it other than with other geeks. Not that you force everyone to use crypto in email, but it should be as easy to choose it as to not choose it. As an analogy, if I say "lets start building doors and doorjams with locks built in," that doesn't equal "force everyone to lock their door." It does mean "its now as easy to choose to lock your door as to keep it unlocked." To me choice means the two alternatives are sitting there, equally available... If there were big "Send: This is Private" and "Send: This is Public" buttons on every email program. Right now the "choice" is "Send" vs "Spend hours retrofitting your system and writing to your recipient to explain to them how to read your email, and getting your grandpa to use it- just give up trying to go there..."This all goes back to the Steve Jackson Games decision of 1994. The Secret Service had seized a BBS belonging to Steve Jackson Games, and SJG sued because the computer also held some unretrieved private email. However, SJG lost on the same grounds as in this case, that email in storage is not protected by the literal language of the Wiretap Act. It may be a technicality, but it's been the law for over ten years.
(c) Exceptions.
Subsection (a) [Offense] of this section does not apply with respect to conduct authorized -
(1) by the person or entity providing a wire or electronic communications service;
Since the person in question was the "... person ... providing a wire or communications service", the Offense section of the act does not apply to him, if he authorized the access. No offense, no crime.
We are the Music Makers, and We are the Dreamers of Dreams...
I actually agree with the ruling, for several reasons.
1: This will bring more attention to privacy tools like any OpenPGP-compatible program, such as the GNU Privacy Guard, than any law preventing law-abiding citizens from thumbing through your emails.
2: The ISP is providing a service using their own equipment. While laws might help, remember that it IS their OWN damn equipment, and if they choose to, there's little you can do if you're not aware of it.
3: The ISP is not the only point in which any mail can be read. Any number of mail backbones can also store a message for perusing later. This is especially true in the case of those undeliverables that are logged for later review. To focus the blame on an ISP is a fallacy.
Personally, I think that people should have little fire lit under them to get themselves protected. I will admit that it's a bit of a bother now, but as soon as vendors see the market value of such systems, how long until it's easy enough for aunt Maude?
The Penguin Producer
Thinkgeek should create a new shirt design.
Front:
i read your email.
Back:
legally.
SPAM
I actually know the defendant in this case, Brad Councilman, personally (although it's been quite a few years since I've had any significant contact with him.) He's a good guy and he pretty much had his life torn apart for several years by overzealous prosecutors looking to make a name for themselves by looking tough on "computer crime." What he did wasn't necessarily right, but he certainly didn't deserve to be treated as a criminal for it. I'm not going to get into a debate with anyone about this right now - I doubt I'm going to change anyone's minds, but think about this: if this guy had the words "accused hacker" before his name in these headlines, how many of you would be rallying to his defense instead of looking to crucify him? If his name were Kevin Mitnick, how many of you would be complaining about how this country is turning into a police state instead of acting like some sysadmin reading your e-mail is a human-rights violation on a par with the Rodney King beating?
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.