According to the Electronic Frontier Foundation (EFF), a dangerous legal precedent has just been set that can potentially unravel existing federal privacy protections for e-mail and Internet usage. The alert from the EFF is not just to sound a general warning, but it also takes the form of an Amicus curiae (friend of the court) brief, filed with the federal 9th U.S. Circuit Court of Appeals, asking for the court's legal finding to be overturned.
In the recent case of "Justin Bunnell, Forrest Parker, Wes Parker and Valence Media, LTD., vs. Motion Picture Association of America
" (MPAA), the owners of TorrentSpy accused the MPAA of violating the federal Wiretap Act by intercepting e-mails. Apparently, a disgruntled TorrentSpy contractor, Robert Anderson, "hacked into the company email server and configured it to copy and forward all incoming and outgoing email to his personal account and then sold the information to the MPAA
." But the court actually ruled that the federal Wiretap Act did not apply in this case, because it claims the e-mails were not "intercepted
" during transmission, but were instead "acquired
" "while in electronic storage
"--stored on the mail server. The brief the EFF filed, disagrees with the court's finding:
"The district court's holding is contrary to the plain language of the statute, misapplies the law of this Circuit, and by setting a precedent for the government and others to engage in similar conduct without regard to the Wiretap Act's prohibitions, dangerously undermines the statutory and constitutional privacy rights of every Internet user."
In a statement issued yesterday, EFF Senior Staff Attorney Kevin Bankston, further elaborated on why this might be the beginning of a very slippery slope:
"The district court's decision, if upheld, would have dangerous repercussions far beyond this single case... That court opinion -- holding that the secret and unauthorized copying and forwarding of emails while they pass through an email server is not an illegal interception of those emails -- threatens to wholly eviscerate federal privacy protections against Internet wiretapping and to authorize the government to conduct similar email surveillance without getting a wiretapping order from a judge."
In other words, the findings of this case could become the foundation of a precedent by which other such similar cases can subsequently be based upon. If that were to be the case, then the unauthorized retrieving of e-mails from an e-mail server would not be considered a violation of the federal Wiretap Act, which opens the door for government-sponsored snooping:
"This case is alarming because its implications will reach far beyond a single civil case. The district court's holding would remove a vast amount of communications from the protection of the Wiretap Act. As such, those communications would at best be protected by the SCA [Stored Communications Access Act], which provides significantly less protection against government access to communications... Most worrisome is that under the district court's holding, law enforcement officers could engage in the contemporaneous acquisition of emails just as Anderson did, without having to comply with the Wiretap Act's requirements."
In a separate, but similar case, the EFF filed another Amicus curiae brief to the federal court of the Western District of Pennsylvania:
"The second case concerns a request by the Department of Justice (DOJ) to a federal magistrate judge in Pennsylvania for authorization to obtain cell phone location tracking information from a mobile phone provider without probable cause. The magistrate instead demanded that the DOJ obtain a search warrant based on probable cause, and the DOJ appealed that decision to the federal district court in the Western District of Pennsylvania. In an amicus brief filed Thursday, EFF urged the district court to uphold the magistrate's ruling and protect cell phone users' location privacy."
At least in this case, the ruling was in favor of privacy, but there is no guarantee that the ruling will stay following the DOJ's appeal. The EFF's brief is meant to be a proactive effort to ensure that the court makes what the EFF feels is the right ruling.