In an online eavesdropping case with potentially profound implications, a federal appeals court in Boston ruled it was acceptable for a company that offered e-mail service to surreptitiously track its subscribers' messages.
A now-defunct online literary clearinghouse, Interloc Inc., made copies of the e-mails in 1998 so it could peruse messages sent to its subscribers by rival Amazon.com Inc. An Interloc executive was subsequently indicted on an illegal wiretapping charge.
An advocacy group said Tuesday's ruling by the 1st US Circuit Court of Appeals opens the door to further interpretations of the federal Wiretap Act that could erode personal privacy rights. "It puts all of our electronic communications in jeopardy -- voice mail, e-mail, you name it," said Jerry Berman, president of the Center for Democracy and Technology.
In a 2-1 decision, the appeals court upheld a federal judge's dismissal last year of a wiretapping charge against a former Interloc vice president, Branford C. Councilman. According to his 2001 indictment, he directed employees to write computer code to intercept and copy all incoming e-mail from Amazon.com to Interloc's subscribers, who were dealers seeking buyers for rare and out-of-print books. Amazon.com did not then offer used books, but helped customers track down rare books.
The government alleged Interloc tried to exploit the Amazon e-mails "to develop a list of books, learn about competitors and attain a commercial advantage."
Councilman argued no violation of the Wiretap Act had occurred because the e-mails were copied while in "electronic storage" -- the messages were in the process of being routed through a network of servers to recipients.
The wiretapping law broadly protects eavesdropping on messages that are not stored -- such as an unrecorded phone conversation -- but does not afford the same legal protections to stored messages. The 1968 law was amended in 1986 to address emerging computer technologies.
In a dissenting opinion, Appeals Court Judge Kermit V. Lipez wrote that upholding Councilman's arguments "would undo decades of practice and precedent regarding the scope of the Wiretap Act and would essentially render the act irrelevant to the protection of wire and electronic privacy."