Intercepting Email is Wiretapping 18 years, 8 months ago by Martey Dodoo

I was pleased to see that the First Circuit Court of Appeals reversed its earlier decision that email messages intercepted by procmail (an Unix program for filtering and sorting email) are not covered under 18 USC 2510, colloquially known as the "Wiretap Act." The case which started this issue is US v. Councilman. The book company Interloc (a subsidiary of Alibris) gave several book dealers email addresses at their website. Bradford Councilman, vice president of Interloc, used procmail to copy email messages sent from the online bookstore Amazon.com to the book dealers so that he and other Interloc employees could read them. For those interested in the intriacies of how individual email messages get to your inbox (and how system administrators can read your email), Section 1a of the latest decision contains an excellent tutorial.

Councilman claimed that the messages he copied and read were in "electronic storage" at the time of the copying, and thus did not fall under the jurisdiction of the Wiretap Act. The June 2004 decision affirmed this claim, which would exclude virtually all computer-related communications from the Wiretap Act, since one could almost always make the claim that such communications were in "electronic storage." At the time, I applauded Judge Kermit Lipez's dissent, which both rejected Councilman's claim and showed an understanding of email rarely seen in American judges.

I was glad to see that the August 11 opinion, which represents the judgement of the en banc^[1] court, is also written by Lipez. It rejects Councilman's claims as an invalid inference into Congress' intent when making the Wiretap Act:

The statute contains no explicit indication that Congress intended to exclude communications in transient storage from the definition of "electronic communication," and, hence, from the scope of the Wiretap Act. Councilman, without acknowledging it, looks beyond the face of the statute and makes an inferential leap. He infers that Congress intended to exclude communications in transient storage from the definition of "electronic communication," regardless of whether they are in the process of being delivered, simply because it did not include the term "electronic storage" in that definition. This inferential leap is not a plain text reading of the statute.

Councilman claimed that since the Wiretap Act explicitly notes that wired communications in "electronic storage" are covered, but does not include the term when defining the extent of electronic communications, Congress obviously did not intend for electronic communications in electronic storage to be covered by the statute. The Court rules that this analysis is faulty, since the definition of electronic communications comes from the Electronic Communications Privacy Act of 1986 and Congress explicitly excluded other types of communications for their defintions of electronic communications (wire/oral communication, tone-based pagers, tracking devices, and electronic bank transfers).

Interestingly, Judge Juan Torruella, who wrote the majority opinion in the June 2004 decision, dissents. In my opinion, it fails to adequately address the majority's opinion, resorting to the standard fallback claim of conservative judges - the majority opinion is wrong because it strays from interpretation of the law to creating new legislation.

It is Congress' failure to provide this emphasized language in its definition of "electronic communication" that incites the majority into engaging in what I believe to be an unfortunate act of judicial legislation that no amount of syllogization can camouflage. The lacuna between the definition of "wire communication" and that of "electronic communication" can only be bridged by the body that created it; jurisprudential "body English" does not suffice to fill that vacuum. Although nature abhors a vacuum, it has no power over legislative oversights.

Even more ridiculously, Torruella shows that he lacks a basic understanding of how procmail, claiming that it is "not 'automatic routing software'" and suggesting that it similar to someone making an examination of the contents of an electronic storage device like someone looking through static files on a hard drive.

^[1]Snooty legal phrase meaning all of the justices of the court took part.