Bad ruling on e-mail

Thomas R. Temin

A Massachusetts appeals court has ruled that a private (now bankrupt) Internet service provider was OK in reading e-mail passing through its servers. The company sold books and offered e-mail service, and it wanted to see what customers were ordering from Amazon.com.

The company's reasoning, to which the court agreed'but in my view is absurd and dangerous'was that because e-mail is stored, it does not have the same privacy protection as phone calls or private conversations. For eavesdropping on those, you still need a court order.
If upheld, this case would have strange effects. It seems to say no e-mail is protected from reading by a third party because it is a stored record'even if 'stored' for only a fraction of a second.

A wide variety of e-mail messages generated by the government doing its own business qualify as records. So what happens if an agency uses a contractor to host and manage its electronic communications? Does that host have the same rights claimed by the defendant in the Massachusetts case? You'd hope a contractor would have the sense to disavow any intention of reading the e-mail for which it provides the traffic medium.

In fact, the big ISPs already disavowed looking at customers' mail. Who would sign on with an ISP, knowing it eavesdropped? But a promise is not the same as a legal proscription against looking at e-mail. What would stop a hosting contractor from reading messages associated with an acquisition? Or an investigation?

This ruling could derail voice over IP. Technically, you could argue that voice messages divided into bits and routed aren't all that different from e-mail. Does that mean snooping is OK for VOIP calls but not for analog calls?

And what about legally protected data the Homeland Security Department will eventually maintain on private-sector infrastructure and related security issues? Conceivably that would be handled in some way by a contractor.

The ruling would seem to allow a back door around the protection of this data, were any of it referred to in or transmitted via e-mail.

Justice should appeal, and Congress should be prepared to fix this one legislatively.

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