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Court rules ISP didn't violate law by capturing, copying e-mails

The Massachusetts case has angered privacy advocates

By Todd R. Weiss
July 2, 2004 12:00 PM ET

Computerworld - In an e-mail privacy case that could have broad implications for users, a federal appeals court ruled Tuesday that the operator of a small ISP operations didn't break federal law when he used special code to intercept and copy some of the e-mail messages his company processed for customers.
The ruling from the U.S. Court of Appeals for the First Circuit in Massachusetts affirmed an earlier District Court decision that Bradford C. Councilman had not violated the Electronic Communications Privacy Act or the Wiretap Act through his actions as operator of Interloc Inc., an online service for rare and out-of-print books.
Interloc was acquired in May 1998 by a California company called Alibris. Councilman ran Interloc's Internet service provider operations and its book dealer subscription list.
Government prosecutors alleged that in January 1998, Councilman ordered Interloc employees to write special code to intercept and copy all customer e-mails containing details of book orders with Seattle-based online retailer The e-mails were intercepted before they were delivered to or read by Interloc's customers.
The government alleged that Councilman sought a competitive advantage in his own rare and used book business by looking at the orders to learn what his customers were buying. That, the government argued, violated the Wiretap Act. It charged Councilman with several criminal counts, including conspiracy to intercept electronic communications and using the contents of illegally obtained electronic communications.
But the District Court ruled in Councilman's favor, arguing that the Wiretap Act doesn't apply to "communications in electronic storage," which it said was the case with the e-mails handled by the Internet service provider.
In the 2-1 decision this week, the Appeals Court agreed and found that the law, written before several advances in technology had occurred, doesn't include precise language that specifically makes the defendant's actions a crime.
"The Wiretap Act's purpose was, and continues to be, to protect the privacy of communications," the court wrote in its majority opinion. "We believe that the language of the statute makes clear that Congress meant to give lesser protection to electronic communications than wire and oral communications. Moreover, at this juncture, much of the protection may have been eviscerated by the realities of modern technology.
"We observe, as most courts have, that the language may be out of step with the technological realities of computer crimes," the ruling continued. "However, it is not the province of this court to graft meaning onto the statute where Congress has spoken plainly. We therefore affirm the district court's [decision] that no intercept occurred in this case, and therefore, the

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