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Court Says Wiretapping Statue Applies to Interception of E-Mail

Posted on: Saturday, 13 August 2005, 00:00 CDT

Aug. 12--A federal appeals court in Boston said yesterday that a businessman charged with intercepting and reading his customers' e-mails can be tried under a federal wiretapping statute. The ruling is the latest twist in a four-year-old case that has been closely watched by Internet civil liberties groups around the country.

Bradford Councilman is former vice president of Interloc Inc., a rare book dealer in Greenfield that offered a free e-mail service to customers. In 1998, Councilman allegedly began intercepting any e-mails sent to his customers by the Internet retailer Amazon.com. Councilman and his colleagues allegedly read the messages to see what Amazon was offering his customers, so that he could make attractive counter-offers.

A grand jury indicted Councilman in 2001 for violating the federal wiretapping law. Councilman urged dismissal of the indictment, saying that the wiretap law did not apply because the e-mail was intercepted while it was stored in the memory of a computer, not when it was traveling across a network.

A federal district court agreed and threw out the indictment. The US Justice Department, which had brought the case against Councilman, appealed the ruling. But a three-judge panel of the US Court of Appeals in Boston also rejected the charges. Last year, the Justice Department persuaded all seven appeals court judges to hear the case.

"The basic question is whether the interception of a message that's stored temporarily violates the law," said Marc Rotenberg, executive director of the Electronic Privacy Information Center, which prepared a friend-of-the-court brief in support of the Justice Department.

Yesterday, the full appeals court ruled 5-2 that Councilman can be tried under the wiretap law. "The term 'electronic communication' includes transient electronic storage that is intrinsic to the communication process," the court said, "and hence that interception of an e-mail message in such storage is an offense under the Wiretap Act."

Councilman can appeal to the US Supreme Court. Otherwise, the case will be sent back to the district court for trial. Councilman's attorney, Andrew Good, stressed that the ruling doesn't mean that Councilman is guilty of the original charge.

"Brad Councilman denies participating in this activity," Good said, adding that the Justice Department will have to prove that Councilman intended to violate the rights of the e-mail users.

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AMZN,

Source: The Boston Globe

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