Posted by Orin Kerr:
Councilman and the E-Mail Privacy Act of 2005:
http://volokh.com/archives/archive_2005_05_01-2005_05_07.shtml#1115407698
Last fall, I blogged a few times about a very important e-mail privacy
case, [1]United States v. Councilman. The [2]original panel decision
in Councilman had gutted the privacy protections of the Wiretap Act,
and the First Circuit vacated that opinion in October and held oral
argument before the full First Circuit in early December. (Full
disclosure: I am counsel of record to a group of amici in the case,
including the ACLU, the Center for Democracy and Technology, and the
Electronic Frontier Foundation.)
It's been sixth months since the First Circuit's en banc argument,
and no opinion has been issued. In the mean time, Congress has
introduced a number of statutory amendments to try to settle the
matter. The best was introduced on April 28: Senator Leahy introduced
[3]S. 936, the E-Mail Privacy Act of 2005, which is a very short and
sweet solution. The Leahy bill adds just a few words to the definition
of "intercept" under the Wiretap Act to make its already implicit
temporal scope textually explicit. It's an elegant and correct
amendment. (More full disclosure: I was consulted on the language
before the bill was introduced.)
I remain optimistic that the Leahy bill won't be necessary; the bill
really just reinforces the interpretation that the First Circuit
should be reaching anyway. Still, it's good to know that some in
Congress are following this issue.
References
1. http://www.epic.org/privacy/councilman/
2. http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=03-1383.01A
3.
http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=109_cong_bills&docid=f:s936is.txt.pdf
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