Intercepting E-Mail
Published: July 2, 2004
When you click on "send" to deliver that e-mail note to your lover, mother or boss, you realize that you are not communicating directly with that person. As you well know, you have stored the e-mail on the computer of your Internet service provider, which, as you also know, may read, copy and use the note for its own purposes before sending it on.
What, you didn't know all this? Sounds ludicrous? We would have thought so, too, but a federal appeals court recently ruled that companies providing e-mail services could read clients' e-mail notes and use them as they wish. Part of its rationale was that none of this would shock you because you have never expected much online privacy.
Count us among the shocked. The decision, on a 2-to-1 vote by a panel of the United States Court of Appeals for the First Circuit in Massachusetts, sets up a frightening precedent, one that must be reversed by the courts, if not the Congress. It's true that people are aware of some limits on online privacy, particularly in the workplace. But the notion that a company like America Online, essentially a common carrier, has the right to read private e-mail is ludicrous.
All major I.S.P.'s, including AOL, say they have no interest in doing that and have privacy policies against it. The case before the First Circuit involved a small online bookseller, no longer in business, that also provided e-mail service. To learn about the competition, the company copied and reviewed all e-mail sent from Amazon.com to its e-mail users. One of its executives was indicted on an illegal-wiretapping charge.
Both the trial and appeals courts ruled that the federal wiretap law, which makes it a crime to intercept any "wire, oral or electronic communication," did not apply because there had been no actual interception. Technically speaking, the judges held, the bookseller had simply copied e-mail notes stored on its servers, and different laws apply to the protection of stored communications.
These laws were drafted before e-mail emerged as a form of mass communication, so there is some ambiguity in how to apply them. But as the dissenting judge on the appellate panel noted, his two colleagues interpreted the statute far too narrowly. What's more, their analysis was predicated on the bizarre notion that our e-mail notes are not in transit once we send them, but in storage with an intermediary. The same logic would suggest that the postal service can read your letters while they are in "storage."
Americans' right to privacy will be seriously eroded if e-mail is not protected by wiretap laws. The implications of this erosion extend beyond the commercial realm. The government will also find it easier to read your e-mail if it does not have to get a wiretap order to do so. Congress ought to update the law to make it clear that e-mail is entitled to the same protection as a phone call.
When you click on "send" to deliver that e-mail note to your lover, mother or boss, you realize that you are not communicating directly with that person. As you well know, you have stored the e-mail on the computer of your Internet service provider, which, as you also know, may read, copy and use the note for its own purposes before sending it on.
What, you didn't know all this? Sounds ludicrous? We would have thought so, too, but a federal appeals court recently ruled that companies providing e-mail services could read clients' e-mail notes and use them as they wish. Part of its rationale was that none of this would shock you because you have never expected much online privacy.
Count us among the shocked. The decision, on a 2-to-1 vote by a panel of the United States Court of Appeals for the First Circuit in Massachusetts, sets up a frightening precedent, one that must be reversed by the courts, if not the Congress. It's true that people are aware of some limits on online privacy, particularly in the workplace. But the notion that a company like America Online, essentially a common carrier, has the right to read private e-mail is ludicrous.
All major I.S.P.'s, including AOL, say they have no interest in doing that and have privacy policies against it. The case before the First Circuit involved a small online bookseller, no longer in business, that also provided e-mail service. To learn about the competition, the company copied and reviewed all e-mail sent from Amazon.com to its e-mail users. One of its executives was indicted on an illegal-wiretapping charge.
Both the trial and appeals courts ruled that the federal wiretap law, which makes it a crime to intercept any "wire, oral or electronic communication," did not apply because there had been no actual interception. Technically speaking, the judges held, the bookseller had simply copied e-mail notes stored on its servers, and different laws apply to the protection of stored communications.
These laws were drafted before e-mail emerged as a form of mass communication, so there is some ambiguity in how to apply them. But as the dissenting judge on the appellate panel noted, his two colleagues interpreted the statute far too narrowly. What's more, their analysis was predicated on the bizarre notion that our e-mail notes are not in transit once we send them, but in storage with an intermediary. The same logic would suggest that the postal service can read your letters while they are in "storage."
Americans' right to privacy will be seriously eroded if e-mail is not protected by wiretap laws. The implications of this erosion extend beyond the commercial realm. The government will also find it easier to read your e-mail if it does not have to get a wiretap order to do so. Congress ought to update the law to make it clear that e-mail is entitled to the same protection as a phone call.
posted by Edward Zhao | 3:50 PM
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