On Thu, Jul 01, 2004 at 07:04:23AM -0700, Steven Buehler wrote:
> Providers Free to Monitor Communications
>
> By Jonathan Krim
> Washington Post Staff Writer
> Thursday, July 1, 2004; Page E01
>
> A company that provides e-mail service has the right to copy and read any
> message bound for its customers, a federal appeals court panel has ruled in a
> decision that could expand e-mail monitoring by businesses and the
> government.
>
> The 2-to-1 decision by a panel of the U.S. Court of Appeals for the
> 1st Circuit
> in Massachusetts alarmed privacy advocates, who said it torpedoes any notion
> that e-mail enjoys the same protections as telephone conversations,
> or letters
> when they are sorted by mail carriers.
>
> The court ruled that because e-mail is stored, even momentarily, in computers
> before it is routed to recipients, it is not subject to laws that apply to
> eavesdropping of telephone calls, which are continuously in transit. As a
> result, the majority said, companies or employers that own the computers are
> free to intercept messages before they are received by customers.
>
What kind of weak reasoning is this? We store it for a while, so we can
read it?
> "This puts all of our electronic communication in jeopardy if this decision
> isn't reversed." said Jerry Berman, head of the Center for Democracy and
> Technology, a public interest policy group.
>
> Peter B. Swire, an Ohio State University law professor who was a privacy
> adviser in the Clinton administration, said the ruling means that an e-mail
> provider "can intercept all your e-mail with impunity, and can read them and
> use them for its own business purposes."
>
> Large companies that dominate e-mail services were quick to disclaim
> any desire
> to read their customers' e-mail. America Online, Microsoft Corp., EarthLink
> Inc., Comcast Corp. and Yahoo Inc. have policies governing their terms of
> service that generally state that they do not read customers' mail or
> disclose
> personal information unless required by law enforcement agencies.
>
> "AOL does not monitor or intercept member communications, in accordance with
> AOL's privacy policy and terms of service," said Nicholas J. Graham,
> a company
> spokesman.
>
> EarthLink spokeswoman Carla Shaw said the company does not "retain copies of
> e-mails, and we don't read individual e-mails."
>
I'll just bet these guys backed away from this decision. I doubt they
actually do read customer emails, and I'm sure they don't want the
backlash from admitting it if they did.
> But a small online company that sold out-of-print book lists did just that,
> sparking the case decided Tuesday by the appeals court. The now-defunct firm,
> Interloc Inc., also provided e-mail service to its members.
>
> In January 1998, according to prosecutors, an Interloc vice president,
> Bradford
> C. Councilman, directed the firm's engineers to make copies of all incoming
> mail to its members from Amazon.com Inc., which also sells books.
>
> The government charged that the company, which was later acquired by a
> California firm, wanted to get an idea of Amazon's book-selling strategy.
>
> Prosecutors charged Councilman with gathering thousands of messages in
> violation of laws governing interception of wire, oral or electronic
> communications.
>
People bitch about the Patriot Act, which isn't anywhere near as onerous
as it's made out to be. That same government is saying that these guys
can't blithely wiretap email. Obvious contradiction. If the
administration really was as 1984 as is often claimed, they wouldn't be
trying to prosecute this case. And oh by the way, the government needs a
_court order_ to wiretap people.
> Councilman appealed, claiming that laws prohibiting interception did
> not apply
> because the messages were stored as a part of delivery to customers.
>
> Andrew Good, Councilman's lawyer, declined to comment on his client's
> motives.
> But Good said no one ever complained about the practice and that the case
> resulted from a tip in an unrelated investigation.
>
They never complained because they didn't _know_ about it! Besides, does
the fact that they don't complain make it okay?
> Good said the decision mirrors other rulings that give employers and
> companies
> broad rights over e-mail stored in their systems.
>
Employers and ISPs are _not_ the same thing. I understand employers
snooping email. If you're sending company email, then the company should
be able to see what you're saying (since you're effectively doing it in
the name of the company). And if you're sending personal email from
work, then you just have to live with company snooping. If your personal
email is that private, wait till you get home.
ISPs are acting as an agent on your behalf. You're their customer, not
their employee.
This could be a selling point for ISPs: When you sign up, they have a
big notice you read that says, "We promise not to read your email."
> In upholding a lower court decision, the appeals panel majority said Congress
> intended for "any temporary, intermediate storage" of communication to be
> governed by laws other than those involving wiretapping or other
> interception.
> The court rejected the government's argument that if communication is being
> transmitted and stored simultaneously, it is protected by interception laws.
>
> "We believe that the language of the statute makes clear that Congress
> meant to
> give lesser protection to electronic communications than wire and oral
> communication," the court said. The judges acknowledged, however, that the
> wiretap law may now be outdated given advances in technology.
>
I'd sure like to know what statute from Congress they're trying to
"interpret". The reasoning sure sounds bogus.
> In dissent, Judge Kermit V. Lipez said the majority misread the law and that
> the ruling "will have far-reaching effects on personal privacy and security."
>
Hooray for the dissenter!
> Like several privacy advocates, the judge raised particular alarm over
> what the
> decision might mean for the ability of law-enforcement to monitor e-mail.
>
> Based on the court's ruling, law enforcement officers would need only
> a search
> warrant to gain access to e-mail before it reaches its recipient, instead
> of a
> wiretap order, which can be far harder to obtain.
>
> The decision, Lipez said, "would undo decades of practice and precedent
> regarding the scope of the Wiretap Act and would essentially render the Act
> irrelevant to the protection of wire and electronic privacy."
>
> In other legal cases, courts have treated temporary storage of electronic
> material differently. Swire said disputes have arisen over whether Internet
> service providers are liable when their customers have illegally copied music
> or other works on their systems, thus temporarily storing them on the ISP's
> networks. Courts have found no such liability, he said.
>
I can't help but liken ISPs to phone companies. Phone companies are not
liable for what you say over the phone. They're not liable for much of
anything, because they're just middlemen. ISPs are effectively in the
same boat. If phone companies temporarily stored your calls, could they
then listen to them with impunity?
> A spokeswoman for the U.S. attorney's office in Boston, which prosecuted the
> case, declined to comment on the decision.
>
> An appeal of the case could put the office at odds with the FBI, which
> has been
> pushing Congress and the Federal Communications Commission for greater
> flexibility to monitor Internet communications.
>
> "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," said
> Kevin Bankston, an attorney for the Electronic Frontier Foundation, a privacy
> advocacy group.
>
Paul
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