United States v. Councilman

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418 F.3d 67 (1st Cir. 2005) (en banc)

The defendant in the case, Bradford Councilman, is a bookseller who offered email service to his customers. Councilman configured the email processing software so that all incoming email sent from Amazon.com, a competitor, was secretly copied and sent to his personal email account before it arrived in the intended recipient's mailbox.

On August 11, 2005, the en banc First Circuit Court of Appeals ruled that Councilman could be prosecuted under the Wiretap Act, holding "that the term "electronic communication" includes transient electronic storage that is intrinsic to the communication process, and hence that interception of an e-mail message in such storage is an offense under the Wiretap Act."

373 F.3d 197 (1st Cir. 2004)

In an earlier decision by a three judge panel, the First Circuit reached the opposite conclusion and dismissed the charges against Councilman, holding that because the emails were in "electronic storage" when copied and rerouted by Counciman, they could not be "intercepted" under the Wiretap Act. But by interpreting the Wiretap Act's privacy protections narrowly, the court effectively gave Internet communications providers free rein to invade the privacy of their users for any reason and at any time. As the panel itself stated in the ruling, "it may well be that the protections of the Wiretap Act have been eviscerated as technology advances."

Chapter 7 - Privacy And Data Collection
Data Terminology · Statutory Protections · The Wiretap Act (Title III) · The Stored Communications Act · Government Agency Regulation · Searching and Seizing Computers · Key Privacy Cases · Industry Self-Regulation · International Issues