NYTimes.com Article: You've Got Mail (and Court Says Others Can Read It)

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The article below from NYTimes.com

has been sent to you by jprior@....

FYI

jprior@...

/--------- E-mail Sponsored by Fox Searchlight ------------\

THE CLEARING - NOW PLAYING IN SELECT CITIES

THE CLEARING stars ROBERT REDFORD and HELEN MIRREN as Wayne

and Eileen - a husband and wife living the American

Dream. Together they've raised two children and struggled to

build a successful business from the ground up. When Wayne

is kidnapped by Arnold Mack (WILLEM DAFOE), and held for

ransom in a remote forest, the couple's world is turned

inside out.

Buy tickets now at:

http://movies.channel.aol.com/movie/main.adp?mid=17891

\----------------------------------------------------------/

You & #39;ve Got Mail (and Court Says Others Can Read It)

July 6, 2004

By SAUL HANSELL

When everything is working right, an e-mail message appears

to zip instantaneously 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 & 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, 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-, 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. "

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 if courts in the rest of the country follow that

ruling.

http://www.nytimes.com/2004/07/06/technology/06net.html?ex=1090109781 & ei=1 & en=95\

17aa47a82e2656

---------------------------------

Get Home Delivery of The New York Times Newspaper. Imagine

reading The New York Times any time & anywhere you like!

Leisurely catch up on events & expand your horizons. Enjoy

now for 50% off Home Delivery! Click here:

http://homedelivery.nytimes.com/HDS/SubscriptionT1.do?mode=SubscriptionT1 & Extern\

alMediaCode=W24AF

HOW TO ADVERTISE

---------------------------------

For information on advertising in e-mail newsletters

or other creative advertising opportunities with The

New York Times on the Web, please contact

onlinesales@... or visit our online media

kit at http://www.nytimes.com/adinfo

For general information about NYTimes.com, write to

help@....

Copyright 2004 The New York Times Company

[Guest guest]

The article below from NYTimes.com

has been sent to you by jprior@....

FYI

jprior@...

/--------- E-mail Sponsored by Fox Searchlight ------------\

THE CLEARING - NOW PLAYING IN SELECT CITIES

THE CLEARING stars ROBERT REDFORD and HELEN MIRREN as Wayne

and Eileen - a husband and wife living the American

Dream. Together they've raised two children and struggled to

build a successful business from the ground up. When Wayne

is kidnapped by Arnold Mack (WILLEM DAFOE), and held for

ransom in a remote forest, the couple's world is turned

inside out.

Buy tickets now at:

http://movies.channel.aol.com/movie/main.adp?mid=17891

\----------------------------------------------------------/

You & #39;ve Got Mail (and Court Says Others Can Read It)

July 6, 2004

By SAUL HANSELL

When everything is working right, an e-mail message appears

to zip instantaneously 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 & 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, 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-, 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. "

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 if courts in the rest of the country follow that

ruling.

http://www.nytimes.com/2004/07/06/technology/06net.html?ex=1090109781 & ei=1 & en=95\

17aa47a82e2656

---------------------------------

Get Home Delivery of The New York Times Newspaper. Imagine

reading The New York Times any time & anywhere you like!

Leisurely catch up on events & expand your horizons. Enjoy

now for 50% off Home Delivery! Click here:

http://homedelivery.nytimes.com/HDS/SubscriptionT1.do?mode=SubscriptionT1 & Extern\

alMediaCode=W24AF

HOW TO ADVERTISE

---------------------------------

For information on advertising in e-mail newsletters

or other creative advertising opportunities with The

New York Times on the Web, please contact

onlinesales@... or visit our online media

kit at http://www.nytimes.com/adinfo

For general information about NYTimes.com, write to

help@....

Copyright 2004 The New York Times Company

[Guest guest]

The article below from NYTimes.com

has been sent to you by jprior@....

FYI

jprior@...

/--------- E-mail Sponsored by Fox Searchlight ------------\

THE CLEARING - NOW PLAYING IN SELECT CITIES

THE CLEARING stars ROBERT REDFORD and HELEN MIRREN as Wayne

and Eileen - a husband and wife living the American

Dream. Together they've raised two children and struggled to

build a successful business from the ground up. When Wayne

is kidnapped by Arnold Mack (WILLEM DAFOE), and held for

ransom in a remote forest, the couple's world is turned

inside out.

Buy tickets now at:

http://movies.channel.aol.com/movie/main.adp?mid=17891

\----------------------------------------------------------/

You & #39;ve Got Mail (and Court Says Others Can Read It)

July 6, 2004

By SAUL HANSELL

When everything is working right, an e-mail message appears

to zip instantaneously 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 & 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, 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-, 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. "

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 if courts in the rest of the country follow that

ruling.

http://www.nytimes.com/2004/07/06/technology/06net.html?ex=1090109781 & ei=1 & en=95\

17aa47a82e2656

---------------------------------

Get Home Delivery of The New York Times Newspaper. Imagine

reading The New York Times any time & anywhere you like!

Leisurely catch up on events & expand your horizons. Enjoy

now for 50% off Home Delivery! Click here:

http://homedelivery.nytimes.com/HDS/SubscriptionT1.do?mode=SubscriptionT1 & Extern\

alMediaCode=W24AF

HOW TO ADVERTISE

---------------------------------

For information on advertising in e-mail newsletters

or other creative advertising opportunities with The

New York Times on the Web, please contact

onlinesales@... or visit our online media

kit at http://www.nytimes.com/adinfo

For general information about NYTimes.com, write to

help@....

Copyright 2004 The New York Times Company

[Guest guest]

The article below from NYTimes.com

has been sent to you by jprior@....

FYI

jprior@...

/--------- E-mail Sponsored by Fox Searchlight ------------\

THE CLEARING - NOW PLAYING IN SELECT CITIES

THE CLEARING stars ROBERT REDFORD and HELEN MIRREN as Wayne

and Eileen - a husband and wife living the American

Dream. Together they've raised two children and struggled to

build a successful business from the ground up. When Wayne

is kidnapped by Arnold Mack (WILLEM DAFOE), and held for

ransom in a remote forest, the couple's world is turned

inside out.

Buy tickets now at:

http://movies.channel.aol.com/movie/main.adp?mid=17891

\----------------------------------------------------------/

You & #39;ve Got Mail (and Court Says Others Can Read It)

July 6, 2004

By SAUL HANSELL

When everything is working right, an e-mail message appears

to zip instantaneously 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 & 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, 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-, 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. "

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 if courts in the rest of the country follow that

ruling.

http://www.nytimes.com/2004/07/06/technology/06net.html?ex=1090109781 & ei=1 & en=95\

17aa47a82e2656

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