Rights: Intercepting E-Mail

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http://www.nytimes.com/2004/07/02/opinion/02FRI2.html?th

 

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 wiretap 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.