11 August 2005

Privacy, E-Mail, and Wiretaps

The First Circuit's en banc opinion in US v. Councilman issued today.1 Although this appears to be just an intensely internet-related matter on statutory interpretation and wiretaps, it's actually quite a bit more than that, as it has significant implications for both DMCA segments of the Copyright Act.2

In its most basic terms, the First Circuit determined that modifying the procmail file on a mail server to divert a copy of an e-mail to another (unintended) inbox did not make the communication a "stored communication" as that term is defined in the Wiretap Act.

Councilman argues, however, that Congress intended to exclude any communication that is in (even momentary) electronic storage. In his view, "electronic communication[s]" under the Wiretap Act are limited to communications traveling through wires between computers. Once a message enters a computer, he says, the message ceases (at least temporarily) to be an electronic communication protected by the Wiretap Act. He claims that Congress considered communications in computers to be worthy of less protection than communications in wires because users have a lower expectation of privacy for electronic communications that are in electronic storage even fleetingly, and that the Act embodies this understanding.

Councilman, slip op. at 10 (footnote omitted). This should bring back some bad memories—the notorious "eleven days isn't stored" rationale in RTC v. Netcom.3 Fortunately for common sense, the First Circuit looked at the complete communication this time around (in the en banc opinion) and noted that any "storage" in the course of transmitting e-mail is an artifact of particular technologies and configurations, not a characteristic of the communication making it "stored."

[I]t appears that Congress had in mind these types of pre- and post-transmission "temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof" when it established the definition of "electronic storage." Its aim was simply to protect such data. There is no indication that it meant to exclude the type of storage used during transmission from the scope of the Wiretap Act.

Councilman, slip op. at 22–23 (citations and internal crossreferences omitted). This is disturbingly at odds with the legislative history of the DMCA, which explicitly compares the four-category scheme eventually adopted in § 512 to the Wiretap Act.4 Broadly stated, it seems odd for the legislative history of a statute to refer with approval to the text of another statute, yet have virtually identical language interpreted in such a radically different fashion.

In any event, the final meaning of Councilman is simple: Technological artifacts will not suffice to remove e-mail from the privacy protections found in the Wiretap Act and demote them to the vastly lesser protections of the Stored Communications Act. The purpose of the communication channel—not its technological implementation, which is invisible to the ordinary user—controls; so a user "expecting" e-mail privacy standards gets them. Whatever they may be.

  1. No. 03–1383(EB) (11 Aug 2005), reversing 373 F.3d 197 (1st Cir. 2004), which in turn affirmed 245 F. Supp. 2d 319 (D. Mass. 2003).
  2. These are codified at 17 U.S.C. § 512 and 17 U.S.C. § 1201 et seq. The former was at issue in Ellison v. AOL, so I'd like to think I know a little bit about the statute's legislative history (such as it is). The statute at issue in Councilman—the Wiretap Act, codified at 18 U.S.C. § 2501 et seq.—was amended in ways that make this comparison both more difficult to perform and more valid.
  3. 907 F. Supp. 1361 (N.D. Cal. 1995). Interestingly, one version of the legislative history of § 512 relies on this decision… and misstates the holding in doing so.
  4. It also undermines the Ninth Circuit's subordinate dictum concerning the "proper" characterization of the Usenet in Ellison—but demonstrating that is far beyond the scope of a blawg entry!