Subject: [NEXTEL-1] U.S. v. Councilman

From: NEXTEL-1
Date: Fri, 02 Jul 2004 11:51:18 -0400

-------- Original Message --------
   From: "James H. Johnston" <[email-masked]>
Subject: [TelecomLaw] U.S. v. Councilman

     In U.S. v. Councilman
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=1st&navby=case&no=031383,
the First Circuit held that the interception of email did not violate
the Wiretap Act.  The defendant, an ISP, had written a computer program
to intercept and copy all incoming email from Amazon so subscribers who
were book dealers.  The court essentially held that the Wiretap Act
doesn't apply to email because it doesn't apply where the communication
is being stored.A New York Times editorial today calls the decision
"ridiculous" and says it should be overturned by the courts or
Congress.  http://www.nytimes.com/2004/07/02/opinion/02FRI2.html.    I'd
like to get a discussion of the opinion.  The legal problem is not as
simple as the Times' editorial makes it appear.  The FBI routinely
seizes computers (of both persons and ISP's) and reads the email on them
and yet the FBI does not consider this to be a wiretap.  Hence, stored
email surely must lie outside the Wiretap Act.    Moreover, as I read
the opinion, First Circuit says that it doesn't make any difference
whether the interception occurs during transit or from storage, as long
as the email is in storage at the time it is intercepted.  If this is
the rationale, then interception of email at any point in the
communication is lawful as long as the email is in storage somewhere.
That is, the FBI could put a wiretap on your line and intercept your
email without following wiretap procedures because the email was also
stored on your computer.    I also wonder what this decision means for
the security of VoIP.  VoIP is packet switched.  The conversations are
always stored somewhere albeit briefly.  The First Circuit's decision
would seem to mean the FBI doesn't need wiretap authority to intercept
VoIP conversations.    Comments?  What are the chances for a reversal by
the Supremes? Jim Johnston

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