| U.S. Reps. Jay Inslee (D-WA) and Chris Cannon (R-UT) have introduced the E-Mail Privacy Act (H.R. 3503), legislation addressing a recent federal court ruling that allows e-mails to be read if they are temporarily stored on the way to the intended recipient.
In 1986, Congress amended the wiretap laws to protect electronic communications, protecting real-time electronic communications under the Wire Tap Act and protecting e-mails stored in record systems under the Stored Communications Act.
In United States v. Councilman, the First Court of Appeals held that an Internet Service Provider (ISP) did not violate the Federal Wiretap Act when it systematically copied and then read its customers’ incoming e-mails for commercial gain. Because the ISP’s snooping software copied e-mails while they were in temporary, millisecond storage incidental to transmission, the Court found no “intercept” of communications occurred.
E-mail messages, after being sent, stop at temporary points en route to their final destinations as part of the transmission process, but are not considered real-time communication and instead considered “stored” and subject to the less restrictive procedures established by the Stored Communications Act.
The court’s ruling opens the door for ISPs to search e-mails that are temporarily stored on their servers without fear of punishment under the Wire Tap Act. It also enables law enforcement agents to search e-mails without obtaining a court order.
The Inslee-Cannon legislation clarifies that “intercepts” subject to the Wire Tap Act include searches that are functionally real-time, in-transit acquisitions, regardless of whether they occur in temporary storage. | 