[Congressional Record (Bound Edition), Volume 150 (2004), Part 11]
[Senate]
[Pages 14956-14959]
[From the U.S. Government Publishing Office, www.gpo.gov]




                        THREAT TO ONLINE PRIVACY

  Mr. LEAHY. Mr. President, I want to address a recent court decision 
that has exposed America's e-mails to snooping and invasive practices. 
The 2-to-1 decision by the First Circuit Court of Appeals in a case 
called United States v. Councilman has dealt a serious blow to online 
privacy. The majority--both, Republican-appointed judges--effectively 
concluded that it was permissible for an Internet Service Provider to 
comb through its customers' emails for corporate gain. If allowed to 
stand, this decision threatens to eviscerate Congress's careful efforts 
to ensure that privacy is protected in the modern information age.
  The indictment in Councilman charged the defendant ISP with violating 
the Federal Wiretap Act by systematically intercepting, copying, and 
then reading its customers' incoming emails to learn about its 
competitors and gain a commercial advantage. This is precisely the type 
of behavior that Congress wanted to prohibit when it updated the 
Wiretap Act in 1986, as part of the Electronic Communications Privacy 
Act (ECPA), to prohibit unauthorized interceptions of electronic 
communications. Congress's goal was to ensure that Americans enjoyed 
the same amount of privacy in their online communications as they did 
in the offline world. Just as eavesdroppers were not allowed to tap 
phones or plant ``bugs'' in order to listen in on our private 
conversations, we wanted to ensure that unauthorized eyes were not 
peering indiscriminately into our electronic communications.
  ECPA was a careful, bipartisan and long-planned effort to protect 
electronic communications in two forms--from real-time monitoring or 
interception as they were being delivered, and from searches when they 
were stored in record systems. We recognized these as different 
functions and set rules for each based on the relevant privacy 
expectations and threats to privacy implicated by the different forms 
of surveillance.
  The Councilman decision turned this distinction on its head. 
Functionally, the ISP in this case was intercepting emails as they were 
being delivered, yet the majority ruled that the relevant rules were 
those pertaining to stored communications, which do not apply to ISPs. 
The majority rejected the Government's argument that an intercept 
occurs--and the Wiretap Act applies--when an email is acquired 
contemporaneously with its transmission, regardless of whether the 
transmission may have been in electronic storage for milliseconds at 
the time of the acquisition. As the dissenting judge found, the 
Government's interpretation of the Wiretap Act is consistent with 
Congressional intent and with the realities of electronic communication 
systems. I agree, and urge the Justice Department to continue to press 
this position in the courts. The Department has been a powerful 
proponent of privacy rights in this case, and I commend its efforts.
  I also will be taking a close look at possible changes to the law to 
ensure that there is no room to skirt the wiretap provisions and engage 
in the type of privacy violation at issue in the Councilman case. We 
have an obligation to ensure that our laws keep up with technology, and 
it may be that advances in communications warrant change. It is 
imperative that we continue to safeguard privacy adequately in our 
modern information age.
  In a world where Americans are already inundated with targeted mass 
marketing and mailings, the Councilman decision opens the door to even 
more invasive activity. With this kind of precedent, ISPs need not 
offer free services in exchange for reduced online privacy. They could 
simply snoop in secret, and their unsuspecting customers would never 
know.
  The Councilman decision also opens the door to Government over-
reaching. For practical reasons, surveillance devices are often 
installed at the point of millisecond-long temporary storage prior to 
an e-mail's arrival at its final destination. To date, law enforcement 
agencies have treated this as what it is--an interception--and have 
sought appropriate wiretap approval. But this decision allows law 
enforcement agents to potentially skip the rigors of the wiretap laws, 
and perhaps could unleash unrestrained use of search programs like 
Carnivore. This outcome belies the realities of electronic 
communications in today's society, undercuts Congress' intent, and is 
inconsistent with the current approach to such communications in law 
enforcement practice.
  The Councilman decision creates an instant and enormous gap in 
privacy protection for email communications, and we need to address it 
swiftly and responsibly. I urge my colleagues to make this a top 
priority as we finish up the session. I ask unanimous consent to have 
printed in the Record four recent editorials and articles on this 
issue.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                [From the Washington Post, July 2, 2004]

                         Derail E-Mail Snooping

       Imagine that your friendly local mail carrier, before 
     delivering a letter for you, decides to steam it open and 
     read its contents. An outrageous and illegal infringement on 
     your privacy, obviously. But a Federal appeals court in 
     Boston has just permitted an

[[Page 14957]]

     Internet service provider to engage in exactly this kind of 
     snooping when the message is sent in cyberspace rather than 
     by snail mail. This ruling is an unnecessarily cramped 
     parsing of a law that Congress meant to guard, not 
     eviscerate, the privacy of communications. The Justice 
     Department, whose prosecution of the ISP executive was thrown 
     out by the appeals court, should seek a review of the ruling. 
     If that doesn't work--if the Federal wiretapping law has been 
     outpaced by the technology it was supposed to regulate--
     Congress should quickly step in to fix the glitch.
       The wiretapping law makes it a crime to intentionally 
     intercept ``any wire, oral, or electronic communication.'' 
     This language dates to 1986, when e-mail was at an embryonic 
     stage but Congress, in an effort to account for and 
     anticipate that and other technological changes, enacted the 
     Electronic Communications Privacy Act.
       The appeals court, however, ruled that opening and reading 
     e-mails isn't covered by the wiretapping law because the 
     messages weren't actually intercepted, as the law defines 
     that term, but were, rather, in ``electronic storage'' and 
     therefore covered by another, looser law. That finding stems 
     from the peculiar nature of e-mail transmission, in which 
     messages are briefly stored as they're transmitted from 
     computer to computer. As the court itself acknowledged, that 
     would leave little privacy for e-mail: ``It may well be that 
     the protections of the Wiretap Act have been eviscerated as 
     technology advances.''
       In practical terms, the implications of the ruling are 
     perhaps more troubling for the restraints it lifts on law 
     enforcement than for the theoretical leeway it gives service 
     providers to copy and read e-mails. The facts of the case 
     were unusual: A small online company that sold out-of-print 
     books and also provided free e-mail service wanted to peek at 
     Amazon.com's sales strategy and copied all of Amazon's 
     messages to the smaller company's customers. Mainstream ISPs 
     have policies that eschew such spying, and the customer 
     backlash that would ensure if they engaged in similar 
     practices would probably deter them from doing so. But the 
     ruling highlights the need for stringent privacy policies in 
     which customers give clear--and informed--consent.
       Of more concern, the case could make it far easier for law 
     enforcement agents to engage in real-time monitoring of e-
     mail and similar traffic, like instant messaging, without 
     complying with the strict rules applied to wiretaps. Under 
     this reading of the law, agents would still need to show 
     probable cause to obtain search warrants from a judge. But 
     they wouldn't have to hew to the more exacting requirements 
     of the wiretap law.
       E-mail has become too ubiquitous, too central a facet of 
     modern life, for this ruling to stand.
                                  ____


                [From the New York Times, July 2, 2004]

                          Intercepting E-Mail

       When you click on ``send'' to deliver that e-mail note to 
     your lover, mother or boss, you realize that you are not 
     communicating directly with that person. As you well know, 
     you have stored the e-mail on the computer of your Internet 
     service provider, which, as you also know, may read, copy and 
     use the note for its own purposes before sending it on.
       What, you didn't know all this? Sounds ludicrous? We would 
     have thought so, too, but a Federal appeals court recently 
     ruled that companies providing e-mail services could read 
     clients' e-mail notes and use them as they wish. Part of its 
     rationale was that none of this would shock you because you 
     have never expected much online privacy.
       Count us among the shocked. The decision, on a 2-to-1 vote 
     by a panel of the United States Court of Appeals for the 
     First Circuit in Massachusetts, sets up a frightening 
     precedent, one that must be reversed by the courts, if not 
     the Congress. It's true that people are aware of some limits 
     on online privacy, particularly in the workplace. But the 
     notion that a company like America Online, essentially a 
     common carrier, has the right to read private e-mail is 
     ludicrous.
       All major I.S.P.s, including AOL, say they have no interest 
     in doing that and have privacy policies against it. The case 
     before the First Circuit involved a small online bookseller, 
     no longer in business, that also provided e-mail service. To 
     learn about the competition, the company copied and reviewed 
     all e-mail sent from Amazon.com to its e-mail users. One of 
     its executives was indicted on an illegal-wiretapping charge.
       Both the trial and appeals courts ruled that the Federal 
     wiretap law, which makes it a crime to intercept any ``wire, 
     oral or electronic communication,'' did not apply because 
     there had been no actual interception. Technically speaking, 
     the judges held, the bookseller had simply copied e-mail 
     notes stored on its servers, and different laws apply to the 
     protection of stored communications.
       These laws were drafted before e-mail emerged as a form of 
     mass communication, so there is some ambiguity in how to 
     apply them. But as the dissenting judge on the appellate 
     panel noted, his two colleagues interpreted the wiretap 
     statute far too narrowly. What's more, their analysis was 
     predicated on the bizarre notion that our e-mail notes are 
     not in transit once we send them, but in storage with an 
     intermediary. The same logic would suggest that the postal 
     service can read your letters while they are in ``storage.''
       Americans' right to privacy will be seriously eroded if e-
     mail is not protected by wiretap laws. The implications of 
     this erosion extend beyond the commercial realm. The 
     government will also find it easier to read your e-mail if it 
     does not have to get a wiretap order to do so. Congress ought 
     to update the law to make it clear that e-mail is entitled to 
     the same protection as a phone call.
                                  ____


                     Court Creates Snoopers' Heaven

                             (By Kim Zetter)

        It was a little court case, but its impact on e-mail users 
     could be huge.
        Last week a Federal appeals court in Massachusetts ruled 
     that an e-mail provider did not break the law when he copied 
     and read e-mail messages sent to customers through his 
     server.
        Upholding a lower-court decision that the provider did not 
     violate the Wiretap Act, the 1st U.S. Circuit Court of 
     Appeals set a precedent for e-mail service providers to 
     legally read e-mail that passes through a network.
        The court ruled (PDF) that because the provider copied and 
     read the mail after it was in the company's computer system, 
     the provider did not intercept the mail in transit and, 
     therefore, did not violate the Wiretap Act.
        It's a decision that could have far-reaching effects on 
     the privacy of digital communications, including stored 
     voicemail messages.
        In 1998, Bradford C. Councilman was the vice president of 
     Interloc, a company selling rare and out-of-print books that 
     offered book-dealer customers e-mail accounts through its Web 
     site. Unknown to those customers, Councilman had engineers 
     write and install code on the company network that would copy 
     any e-mail sent to customers from Amazon.com, a competitor in 
     the rare-books field.
        Although Councilman did not prevent customers from 
     receiving their e-mail, he read thousands of copied messages 
     to discover what books customers were seeking and gain a 
     commercial advantage over Amazon. Interloc was later bought 
     by Alibris, which was unaware that Councilman had installed 
     the code on the system.
        Councilman wasn't caught because customers complained 
     about his actions; a tip about another, unrelated issue led 
     authorities to discover what he had done.
        But just what had Councilman done that was so bad?
        Everyone knows that e-mail is an insecure form of 
     communication. Like a postcard, unencrypted correspondence 
     sent over the Internet is open to snooping by anyone.
       Additionally, companies have the right to read their 
     employees' e-mail, since the companies own the computer 
     systems through which the correspondence passes, and 
     employees send the mail on company time. And ISPs scan e-mail 
     for viruses and spam all the time, before delivering the mail 
     to the provider's customers.
       But there is an expectation that service providers will 
     access communications only with permission from customers, or 
     when they need to do so to maintain their network. In fact, 
     the Wiretap Act states that a provider shall not ``intercept, 
     disclose, or use'' communication passing through its network 
     ``except for mechanical or service quality control checks.''
       In April, Google launched an e-mail program called Gmail 
     that gives customers 1 GB of e-mail storage in exchange for 
     letting Google's computers scan the content of incoming e-
     mails to seed them with related text ads. Gmail customers 
     agree to let a computer read their e-mail.
       In contrast, Councilman personally read customers' messages 
     to undermine his competitors' business. He did no without 
     customers' permission and with the knowledge that if his 
     customers found out, his company would likely lose their 
     business.
       And yet the court found him innocent of violating the 
     specific law under which authorities charged him.
       The court ruled that because the mail was already on 
     Councilman's computer network when he accessed it, he didn't 
     intercept it in transit and therefore was not guilty under 
     the Wiretap Act. The court said the mail was in storage at 
     that point and, therefore, was governed under the Stored 
     Communications Act.
       In a similar case in 1991, the U.S. Secret Service seized 
     three computers belonging to a company called Steve Jackson 
     Games. The company, in addition to producing fantasy books 
     and games, hosted an online bulletin board for gamers to 
     communicate with one another. An employee of the company was 
     under suspicion for activities conducted outside work, but 
     the Secret Service confiscated his employer's computers as 
     well. The Secret Service accessed, read and deleted 162 e-
     mail messages that were stored on the computers used for the 
     bulletin board.
       In a suit filed by the game company against the Secret 
     Service, a federal district court found that while the Secret 
     Service agents did not intercept the e-mail, and thus

[[Page 14958]]

     violate the Wiretap Act, they did violate the Stored 
     Communications Act.
       Pete Kennedy, the lawyer from the Texas-based firm that 
     litigated the case, called the decision ``a solid first step 
     toward recognizing that computer communications should be as 
     well-protected as telephone communications.''
       The Stored Communications Act, along with the Wiretap Act, 
     is part of the Electronic Communications Privacy Act, which 
     protects electronic, oral and wire communications.
       But because Councilman was charged under the Wiretap Act 
     and not the Stored Communications Act, the court had to rule 
     in his favor. But even if prosecutors had wanted to charge 
     him under the Stored Communications Act, they could not have 
     done so, since service providers are exempted under the Act.
       What this means is that before the Councilman case, ISPs 
     that read their customers' mail without permission could only 
     have been prosecuted under the Wiretap Act. But now the 
     Councilman case eliminates that possibility as well.
       The problem with interpreting e-mail on an ISP's server as 
     stored communication is that it opens the possibility for e-
     mail even outside the ISP to be viewed as stored e-mail.
       At many points during its path from sender to recipient, e-
     mail passes through a number of computer systems and routers 
     that temporarily store it in RAM while the system determines 
     the next point to send it on the delivery route. Under the 
     court's definition, an ISP could access, copy and read the 
     mail at any of these points. Anyone who is not exempt under 
     the Stored Communications Act, however, could still be 
     charged under that law, though penalties for violating this 
     law are less severe than penalties for violating the Wiretap 
     Act.
       Last week's ruling means that e-mail has fewer protections 
     than phone conversations and postal mail. Granting e-mail 
     providers the ability to read e-mail is equivalent to 
     granting postal workers the right to open and read any mail 
     while it's at a post office for sorting, but not while it's 
     in transit between post offices or being hand-delivered to a 
     recipient's home or business.
       The ruling also has repercussions for voicemail messages, 
     as long as certain provisions in the Patriot Act remain law.
       Before the Patriot Act, the legal definition of wire 
     communication included voicemail messages. This meant that 
     authorities had to obtain a wiretap order to access voicemail 
     messages or face charges of illegal interception under the 
     Wiretap Act. Under the Patriot Act, however, the definition 
     of wire communication changed. Voicemail messages are now 
     considered stored communication, like e-mail. As a result, 
     law enforcement authorities need only a search warrant to 
     access voicemail messages, a much easier process than 
     obtaining a wiretap order.
       The provision in the Patriot Act that changed this is set 
     to sunset in December 2005, but if the current administration 
     has its way, the law will be renewed.
       The changes in the Patriot Act, combined with the decision 
     in the Councilman case, also mean that a phone company could 
     now access voicemail messages without customers' permission 
     and not be charged with intercepting the messages under the 
     Wiretap Act. They also would not be charged under the Stored 
     Communications Act, since they are exempt from this statute.
       If all of this is hard to follow, it's just as confusing to 
     the people who make their living interpreting the law.
       ``This is one of the most complex and convoluted areas of 
     the law that you will run across,'' said Lee Tien, senior 
     staff attorney for the Electronic Frontier Foundation. ``The 
     statutes themselves are not models of clarity. Even for the 
     judges it's complicated, and then, on top of the statutes, 
     you add the changing technology.''
       In the end, in the absence of laws to preserve privacy, the 
     best solution for e-mail users to protect their privacy is to 
     use encryption. But until encryption for voicemail messages 
     becomes common, you'll have to settle for talking in tongues.
                                  ____


                [From the New York Times, July 6, 2004]

          You've Got Mail (and Court Says Others Can Read It)

                           (By Saul Hansell)

       When everything is working right, an e-mail message appears 
     to zip instantenously from the sender to the recipient's 
     inbox. But in reality, most messages make several momentary 
     stops as they are processed by various computers en route to 
     their destination.
       Those short stops may make no difference to the users, but 
     they make an enormous difference to the privacy that e-mail 
     is accorded under federal law.
       Last week a Federal appeals court in Boston ruled that 
     federal wiretap laws do not apply to e-mail messages if they 
     are stored, even for a millisecond, on the computers of the 
     Internet providers that process them--meaning that it can be 
     legal for the government or others to read such messages 
     without a court order.
       The ruling was a surprise to many people, because in 1986 
     Congress specifically amended the wiretap laws to incorporate 
     new technologies like e-mail. Some argue that the ruling's 
     implications could affect emerging applications like 
     Internet-based phone calls and Gmail Google's new e-mail 
     service, which shows advertising based on the content of a 
     subscriber's e-mail messages.
       ``The court has eviscerated the protections that Congress 
     established back in the 1980's,'' said Marc Rotenberg, the 
     executive director of the Electronic Privacy Information 
     Center, a civil liberties group.
       But other experts argue that the Boston case will have 
     little practical effect. The outcry, said Stuart Baker, a 
     privacy lawyer with Steptoe & Johnson in Washington, is 
     ``much ado about nothing.''
       Mr. Baker pointed out that even under the broadest 
     interpretation of the law, Congress made it easier for 
     prosecutors and lawyers in civil cases to read other people's 
     e-mail messages than to listen to their phone calls. The 
     wiretap law--which requires prosecutors to prove their need 
     for a wiretap and forbids civil litigants from ever using 
     them--applies to e-mail messages only when they are in 
     transit.
       But in a 1986 law, Congress created a second category, 
     called stored communication, for messages that had been 
     delivered to recipients' inboxes but not yet read. That law, 
     the Stored Communications Act, grants significant protection 
     to e-mail messages, but does not go as far as the wiretap 
     law: it lets prosecutors have access to stored messages with 
     a search warrant, while imposing stricter requirements on 
     parties in civil suits.
       Interestingly, messages that have been read but remain on 
     the Internet provider's computer system have very little 
     protection. Prosecutors can typically gain access to an 
     opened e-mail message with a simple subpoena rather than a 
     search warrant. Similarly, lawyers in civil cases, including 
     divorces, can subpoena opened e-mail messages.
       The case in Boston involved an online bookseller, now 
     called Alibris. In 1998, the company offered e-mail accounts 
     to book dealers and, hoping to gain market advantage, 
     secretly copied messages they received from Amazon.com. In 
     1999, Alibris and one employee pleaded guilty to criminal 
     wiretapping charges.
        But a supervisor, Bradford C. Councilman, fought the 
     charges, saying he did not know about the scheme. He also 
     moved to have the case dismissed on the ground that the 
     wiretapping law did not apply. He argued that because the 
     messages had been on the hard drive of Alibris's computer 
     while they were being processed for delivery, they counted as 
     stored communication. The wiretap law bans a company from 
     monitoring the communications of its customers, except in a 
     few cases. But it does not ban a company from reading 
     customers' stored communications.
        ``Congress recognized that any time you store 
     communication, there is an inherent loss of privacy,'' said 
     Mr. Councilman's lawyer, Andrew Good of Good & Cormier in 
     Boston.
        In 2003, a Federal district court in Boston agreed with 
     Mr. Councilman's interpretation of the wiretap law and 
     dismissed the case. Last week, the First Circuit Court of 
     Appeals, in a 2-to-1 decision, affirmed that decision.
        Because most major Internet providers have explicit 
     policies against reading their customers' e-mail messages, 
     the ruling would seem to have little effect on most people.
        But this year Google is testing a service called Gmail, 
     which electronically scans the content of the e-mail messages 
     its customers receive and then displays related ads. Privacy 
     groups have argued that the service is intrusive, and some 
     have claimed it violates wiretap laws. The Councilman 
     decision, if it stands, could undercut that argument.
        Federal prosecutors, who often argue that wiretap 
     restrictions do not apply in government investigations, were 
     in the somewhat surprising position of arguing that those 
     same laws should apply to Mr. Councilman's conduct. A 
     spokesman for the United States attorney's office in Boston 
     said the department had not decided whether to appeal.
        Mr. Baker said that another Federal appeals court ruling, 
     in San Francisco, is already making it hard for prosecutors 
     to retrieve e-mail that has been read and remains on an 
     Internet provider's system.
        In that case, Theofel v. Farey-Jones, a small Internet 
     provider responded to a subpoena by giving a lawyer copies of 
     339 e-mail messages received by two of its customers.
        The customers claimed the subpoena was so broad it 
     violated the wiretap and stored communication laws. A 
     district court agreed the subpoenas were too broad, but ruled 
     they were within the law. The plaintiffs appealed, and the 
     Justice Department filed a friend of the court brief arguing 
     that the Stored Communications Act should not apply.
        In February, the appeals court ruled that e-mail stored on 
     the computer server of an Internet provider is indeed covered 
     by the Stored Communications Act, even after it has been 
     read. The court noted that the act refers both to messages 
     before they are delivered and to backup copies kept by the 
     Internet provider. ``An obvious purpose for storing a message 
     on an I.S.P.'s server after delivery,'' the court wrote, ``is 
     to provide a second copy of the message in the event that the 
     user needs to download it again--if, for example, the message 
     is accidentally erased from the user's own computer.''

[[Page 14959]]

        Calling e-mail ``stored communication'' does not 
     necessarily reduce privacy protections for most e-mail users. 
     While the Councilman ruling would limit the applicability of 
     wiretap laws to e-mail, it appears to apply to a very small 
     number of potential cases. The Theofel decision, by contrast, 
     by defining more e-mail as ``stored communications,'' is 
     restricting access to e-mail in a wide range of cases in the 
     Ninth Circuit, and could have a far greater effect on privacy 
     of courts in the rest of the country follow that ruling.

                          ____________________