E-Mail Interception Decision Reversed

Is e-mail in transit communications or data in storage? Seems like a basic question, but the answer matters a lot to the police. A U.S. federal Appeals Court has ruled that the interception of e-mail in temporary storage violates the federal wiretap act, reversing an earlier court opinion.

The case and associated privacy issues are summarized here. Basically, different privacy laws protect electronic communications in transit and data in storage; the former is protected much more than the latter. E-mail stored by the sender or the recipient is obviously data in storage. But what about e-mail on its way from the sender to the receiver? On the one hand, it's obviously communications on transit. But the other side argued that it's actually stored on various computers as it wends its way through the Internet; hence it's data in storage.

The initial court decision in this case held that e-mail in transit is just data in storage. Judge Lipez wrote an inspired dissent in the original opinion. In the rehearing en banc (more judges), he wrote the opinion for the majority which overturned the earlier opinion.

The opinion itself is long, but well worth reading. It's well reasoned, and reflects extraordinary understanding and attention to detail. And a great last line:

If the issue presented be "garden-variety"... this is a garden in need of a weed killer.

I participated in an Amicus Curiae ("friend of the court") brief in the case. Here's another amicus brief by six civil liberties organizations.

There's a larger issue here, and it's the same one that the entertainment industry used to greatly expand copyright law in cyberspace. They argued that every time a copyrighted work is moved from computer to computer, or CD-ROM to RAM, or server to client, or disk drive to video card, a "copy" is being made. This ridiculous definition of "copy" has allowed them to exert far greater legal control over how people use copyrighted works.

Posted on August 15, 2005 at 7:59 AM • 13 Comments

Comments

PhillipAugust 15, 2005 8:17 AM

Does that mean if I am reading a book I am making a copy of it in my short term (and possibly long term) memory?

PhillipAugust 15, 2005 8:20 AM

@Bruce

Your Amicus Curiae Briefing points to "The Devil's Infosec Dictionary". Did you really send this to the court?

Michael KleberAugust 15, 2005 8:22 AM

You have the sides backwards. The government accused Bradford Councilman of breaking the federal Wiretap Act, and Councilman's defense argued that he was only reading email stored on a computer, not "in transit", so the Wiretap Act didn't apply. The court just found in favor of the US position, writing that "transient electronic storage that is intrinsic to the communication process" is indeed part of "electronic communication."

The government argues the wrong side of privacy disputes far too often. Let's be sure to give them fair credit when they're in the right.

Here is the blog thread on the subject by Orin Kerr of the Volokh Conspiracy, author of the EPIC/EFF/ACLU/etc amicus brief you mentioned.

Michael KleberAugust 15, 2005 8:23 AM

You have the sides backwards. The government accused Bradford Councilman of breaking the federal Wiretap Act, and Councilman's defense argued that he was only reading email stored on a computer, not "in transit", so the Wiretap Act didn't apply. The court just found in favor of the US position, writing that "transient electronic storage that is intrinsic to the communication process" is indeed part of "electronic communication."

The government argues the wrong side of privacy disputes far too often. Let's be sure to give them fair credit when they're in the right.

The blog thread on the subject by Orin Kerr of the Volokh Conspiracy, author of the EPIC/EFF/ACLU/etc amicus brief you mentioned, can be found at
http://volokh.com/posts/chain_1100621628.shtml

Bruce SchneierAugust 15, 2005 9:56 AM

"Your Amicus Curiae Briefing points to "The Devil's Infosec Dictionary". Did you really send this to the court?"

Fixed. Thank you. (Even worse, the error is also in Crypto-Gram.)

Bruce SchneierAugust 15, 2005 11:28 AM

"The link on "ruled" leads to the EFF et al. amicus brief. Where is the actual court opinion?"

This is what I get for working quickly on a weekend. I'll fix it right now.

Ari HeikkinenAugust 17, 2005 9:45 PM

Well, using whatever method you're still going to read any intercepted message from a buffer. It would be kind of silly to say it's storage and not communications.

Megan RogersNovember 13, 2006 6:53 PM

Just starting to do a little research. Any information about whether intercepting someone's cell phone, looking at photos, videos, text messages saved on phone and forwarding to others is violation of wiretap law?

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