Court reverses dreadful decision on wiretapping
http://arstechnica.com/news.ars/post/20050812-5203.html
8/12/2005 3:36:33 PM, by Charles Jade
In a victory for both justice and common sense, the full First Circuit Court
of Appeals reversed an earlier decision by a three-judge panel in the
interpretation of the Wiretap Act. Bradford Councilman, former vice
president of a now defunct bookseller and provider of free email service,
was accused of illegally intercepting messages sent from Amazon.com to users
in order to gain commercial advantage. By interpreting the law in a manner
so narrow that it might be described as mono-molecular, the First Circuit
panel ruled in favor of the defense based upon the notion that the email was
not in transit. The messages were in a state of "electronic storage" in the
server's memory for a few milliseconds, and thus the Stored Communication
Act (SCA) applied instead, a law which apparently has no restrictions on
access to user mail. In its ruling, the full court disagreed 5-2, citing the
overriding and pretty obvious, issue.
We conclude that the term "electronic communication" includes transient
electronic storage that is intrinsic to the communication process for such
communications.
Although most people might not use the word "communication" over and over,
most reasonable people would probably agree with the summation of EFF
attorney Kevin Bankston
The First Circuit correctly recognized that when law professors, privacy
activists, the Department of Justice, and the drafters of the law all agree
on what the wiretap statute means, as was the case here, they probably know
what they're talking about.
But not Judge Juan Torruella. In dissent, he summed up the former majority
opinion of the three-judge panel.
It is Congress' failure to provide this emphasized language in its
definition of "electronic communication" that incites the majority into
engaging in what I believe to be an unfortunate act of judicial legislation
that no amount of syllogization can camouflage.
While the deficiencies of Congress can be expounded upon at length, one
could also argue that there is a failure to grasp the nature of the
technology itself, at least upon the part of certain members of the
judiciary. Lawyers for the defendant are considering an appeal to the
Supreme Court, perhaps waiting for a nomination to the Supreme Court that
has a better understanding of their case.
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