Court revives high-profile wiretap prosecution

Service provider snooping loophole ties lawyers in knots

A US federal appeals court has overturned a decision that implied service providers could legally snoop on subscriber's email messages in a ruling that revives a high-profile online eavesdropping prosecution.

Two years ago a judge ruled it permissible for online literary clearinghouse Interloc to make copies of messages sent by subscribers of its free email service to Amazon.com. Interloc hoped to gain a commercial advantage by seeing what its users were ordering. Because these messages went through Interloc's servers a judge decided wiretap laws hadn't been violated and dismissed a prosecution against Bradford Councilman, a senior executive at the now defunct firm. The legal argument hinged on whether Interloc "intercepted" these messages. Councilman's lawyers successfully argued that no breach of the act had occurred because the emails were copied while held in storage. The first US Circuit Court of Appeals upheld this decision to scratch the case in June 2004, prompting a government appeal. This week that appeal court overturned the initial ruling in a split 5-2 decision. The case is to be sent back to a district court for trial, AP reports.

The Wiretap Act refers to the need to protect the privacy of messages in transit against unwarranted snooping. By majority opinion the appeal court judges ruled that wire tapping prohibitions apply to messages in temporary storage because this stage is integral to the communications process. In a dissenting opinion, Appeals Court Judge Juan Torruella said that that the privacy of subscribers ought to be protected by privacy agreements so that remedies lie in contract rather than wiretap laws. ®