Strange e-mail case

The U.S. Department of Justice has asked a full appeals court to review a controversial ruling saying an e-mail provider did not violate federal wiretapping laws by allegedly reading messages meant for customers.

In an unusual twist, civil liberties groups are joining the government's request to the full 1st Circuit Court of Appeals to revisit a three-judge panel's decision in June that cleared Bradford Councilman, formerly vice president of online bookseller Interloc, of federal wiretapping charges.

Both legal briefs say that the 2-1 ruling sets an unfortunate precedent that effectively creates an unintentional loophole in Internet wiretapping laws--at least in the New England states that make up the 1st Circuit.

"Internet service providers would be free to access the private e-mail of their customers without criminal liability (and) criminals and corporate spies could monitor private e-mail without violating the Wiretap Act," warns the government's brief, filed last Friday. "Under the rule adopted by the panel, (digital) phone calls could be captured without violating the Wiretap Act.", informs ZDNet News.

According to the Wired News, the case centered on Bradford C. Councilman, an online bookseller who offered his customers free e-mail accounts and then sifted through e-mails from to his customers.

A three-judge panel from the 1st Circuit Court of Appeals upheld the dismissal, arguing that the wiretap law did not apply since the e-mails were stored, even if only for seconds, on Councilman's computer.

Federal wiretap law sets stricter standards for monitoring communications in progress than for stored communications.

Critics called the ruling an assault on the rights of e-mail users.

The Justice Department is pushing to have the ruling overturned because it upsets years of guidance about how to prosecute illegal snooping, and even warns the ruling could open the door to unfettered monitoring of internet phone calls. The Justice Department filed its appeal Aug. 27 and is asking that the full court revisit the case.

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