Technology Perspective
August 19th, 2004
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August 19th, 2004
Tech.gov: Is Your Personal E-Mail Private?
Sr. Ed. Anush Yegyazarian
Everyone (or almost everyone) knows that the e-mail you send and
receive at work, using your employer's computers and network, isn't
really private: The company and your boss have the right to both
monitor and read what you're sending and receiving. But if you're like
me, you probably thought that the ISP you use at home--and by
extension those who work there--doesn't have the same right. We're
wrong: they do.
At least that's what a recent court ruling says. Apparently, a strict
reading of the laws that supposedly protect our private
communications--principally 1968's Wiretap Act (Chapter 119 of Title
18) and one of the subsequent amendments to it, 1986's Electronic
Communications Privacy Act--in effect denies e-mail the kind of
privacy protection from law enforcement agents that other forms of
personal communication have.
What's more, the laws give ISPs pretty much the same right to read and
monitor your e-mail that you have.
The court ruling is linked here:
http://pcwnl.pcworld.com/t/197835/21421687/722350/0/
Wiretap Act (Chapter 119 of Title 18):
http://pcwnl.pcworld.com/t/197835/21421687/722351/0/
Electronic Communications Privacy Act:
http://pcwnl.pcworld.com/t/197835/21421687/722352/0/
In Transit vs. Stored
About a month ago, in U.S. vs. Bradford C. Councilman, the U.S. First
Circuit Court of Appeals ruled that an ISP wasn't covered by the
Wiretap Act if it chose to snoop into its users' e-mail because the
e-mail messages are stored on its servers. For that ruling, read "Who
Could Be Reading Your E-Mail?":
http://pcwnl.pcworld.com/t/197835/21421687/722353/0/
Councilman worked for a company called Interloc, a rare book listing
service that also provided Internet access (the company was
subsequently bought by Alibris). He ordered a modification to their
e-mail handling program so that his company could identify and copy
itself on e-mail sent to its users from certain domains, such as
Amazon.com, in order to get a competitive advantage.
However, according to the Wiretap Act, an ISP is not allowed to
intercept your e-mail and read it or otherwise use its contents. So
the federal government prosecuted. Councilman argued that he didn't
intercept anything, as the e-mail messages were no longer in transit:
They were stored in the RAM or the hard drive of the company's
computers. Both the district and appellate courts in Massachusetts
agreed.
Why should the location matter? Well, it matters because the law
treats stored e-mail messages differently from ones in transit. I kid
you not.
Stored e-mail messages fall under the guidelines set out in 1968's
Stored Communications Act (Title 18, Chapter 121). Its restrictions on
both ISPs and law enforcement agents are less stringent than the rules
governing communications under the Wiretap Act. And while wiretap laws
don't allow ISPs to read your e-mail, the Stored Communications Act's
rules do. Here's the text:
http://pcwnl.pcworld.com/t/197835/21421687/722351/0/
Like so many other things in law, it all comes down to language and
definitions--in this case the definitions of "transit,"
"transmission," and "interception." For the wiretap rules to apply,
your e-mail has to be intercepted, which means it has to be in
transit.
If I were asked, I'd say an e-mail is in transit as long as it hasn't
actually been downloaded to my in-box: It hasn't reached me, so it's
still traveling. It's like a package: Those new CDs I've ordered from
Amazon.com are still in transit until they're in my hands, although
technically they may be stored at the local UPS depot awaiting
rescheduled delivery because I wasn't home the first time.
However, the way the laws are worded--and the way they've been
interpreted by the courts--defines "transit" as a very limited state
for electronic communications: It's only that tiny portion of time it
takes an e-mail message to pulse through telecom pipes between periods
when it's stored on the servers that route e-mail traffic from sender
to receiver. "Storage" is quite broadly defined in these laws. It
includes all kinds of momentary storage: for example, on a server or
in a PC's RAM, or even its cache. So e-mail is considered to be "in
storage" nearly all of the time.
Welcome to the wacky world of law.
Consistent Protection in the Works
Although the decision in U.S. vs. Councilman does give ISPs the right
to snoop into users' e-mail practically anytime they want to--and
significantly eases access to private e-mail for law enforcement
agents--it's really something of a red herring, says Kevin Bankston,
an attorney for the Electronic Frontier Foundation. The real problem,
he says, is that the Stored Communications Act and the Wiretap Act
treat and regulate access to e-mail so differently, when they should
protect e-mail in the same way.
The problem is quite specifically limited to e-mail. Voice mail, for
example, is explicitly protected under wiretap laws even when it's
stored. E-mail isn't.
At least some Congressional representatives think this not-so-little
discrepancy should be resolved. See "Privacy Protection Urged for
E-Mail" for details:
http://pcwnl.pcworld.com/t/197835/21421687/722354/0/
A new bill (H.R. 4956) proposed in late July should help do just that:
http://pcwnl.pcworld.com/t/197835/21421687/722355/0/
The E-Mail Privacy Act of 2004 would place e-mail, even while it's
stored, basically under the interception rules for wiretaps, and would
also help prevent ISPs from accessing users' e-mail messages beyond
what's needed for the service to function. And, yes, there are times
when it is necessary--desirable even--for ISPs to have such access.
Not All Monitoring Is Bad
There are certain kinds of e-mail scanning and filtering that I want
my ISP to perform. It can--and should--go to town on spam, and I'm
grateful for any virus or worm scanning that goes on before my local
protection kicks in. In my mind, that's part of the service I'm paying
for. And what do you know? The laws actually agree with me. ISPs are
allowed to perform functions like this because such actions are
considered part of their normal course of business, or serve to
protect their business or equipment.
H.R. 4956 would have no effect on that. In case you're wondering,
Google's controversial GMail wouldn't be affected under the new bill
either. Users know exactly what they're getting into when they sign
up, so they have given consent to GMail's computerized snooping.
For more on Google's service, read "Gmail: Google's E-Mail Winner":
http://pcwnl.pcworld.com/t/197835/21421687/515689/0/
That informed opt-in for GMail makes it okay in my book, too. But
Councilman acted without the knowledge or consent of users. ISPs
already enjoy a certain privileged position in the eyes of the law:
They're exempt from responsibility and liability for what their users
say in the e-mail the service handles. That privilege exists for good
reason: They need that freedom to operate the service and consequently
allow you and me to exercise our free speech via this medium. But the
unrestricted right to scan, read, or copy the e-mail they
process--without user knowledge or consent--serves no comparable good.
It's time to close that loophole.
Have a question or comment? Write to Anush Yegyazarian:
[EMAIL PROTECTED]
Read Anush Yegyazarian's regularly published "Tech.gov" columns:
http://pcwnl.pcworld.com/t/197835/21421687/364632/0/
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