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Linguistic paradox

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Opinion Last week a Federal District Court in Boston decided that when someone reads your private email without your permission and before you receive it, it doesn't violate federal wiretap law. The ruling perfectly illustrates how we can frustrate the entire purpose of a statute simply by reading it too carefully.

The case began when an online bookstore named Internloc decided to also become an online ISP... and a KGB. First it provided its clients with email and Internet access, then it became interested in its customers' communications with competitor Amazon.com, presumable to find out which books its customers were buying from Amazon, and not from them. Internloc modified its inbound mail server to make special copies of any incoming Amazon email for the company to read, without the customers' knowledge or consent.

The US Attorney's Office for the District of Massachusetts indicted the company and its vice president, Brad Councilman, for violation of the federal wiretap law, Title 18 United States Code Section 2511, which makes it a crime to: "intentionally intercept, endeavor to intercept, or procure any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication."

The charges seemed reasonable enough: the communications were certainly "intercepted" in the sense that they were read by the ISP before the recipient got them. But the federal court disagreed.

The statute in question distinguishes between communication "in transmission," which is protected by the law, and one that is in "storage," defined as "any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof."

Based on this language, the court held that, even though the ISP diverted the incoming emails and read them before the recipients even knew they were there, they did not "intercept" them in transmission, and therefore violated no law.

This reading of the law is not really unique. Courts have held that the wiretap law required interception in transmission before - finding that seizing of a computer gaming company's email, perusing a secure website under false pretenses, reading an independent insurance agent's corporate email, installing and using tracking cookies, and even hacking into a computer and retrieving email does not violate the wiretap law. The courts have observed that to "intercept" something, according to the dictionary, is "to stop, seize, or interrupt in progress or course before arrival" and therefore that "a contemporaneous interception - i.e., an acquisition during flight - is required to implicate the Wiretap Act.

The problem in the Boston case is that the ISP's reading of the email was as close to contemporaneous as you can get with the Internet.

Paradox

According to the indictment, Councilman worked his spying by virtually tapping the very means by which email is delivered on his company's system: he instructed his employees to modify the Procmail mail processing code to spin off a copy of any inbound mail originating from Amazon.com to a location where it would be accessible to Councilman and others in Interloc, who then read it. That means this diversion truly happened as the mails were in transit en route to the recipient. The "interception" was contemporaneous with the delivery of the email - in fact, it occurred moments before the email was delivered to the proper recipient.

But that wasn't good enough to satisfy the wiretap statute, the judge found. Because the email was in the mail server's memory and incoming mail queue at the time of the interception, it was no longer in transit.

That's not an unreasonable reading of the statute, but I am hard pressed to understand how emails could ever be truly "intercepted" in transmission under this law, as the packets that comprise them follow a "store and forward" model. I could program your ISP's router to send me a copy of every packet your computer transmits or receives, and it would be legal under the Boston court rationale. The FBI, NSA and CIA could have a field day, without the trouble of getting court orders.

The government did not try to prosecute Councilman for violating the Stored Communications statute, 18 USC 2701, which makes it a crime to "intentionally exceed authorization to accesses a facility through which an electronic communication service is provided and thereby obtain, alter, or prevent authorized access to a wire or electronic communication while it is in electronic storage in such system..." The court noted in passing that this provision might not apply to the actions of an ISP that has authorization to access the system, but not necessarily to read your mail.

The troubling aspects of the Boston decision were even apparent to the judge, who pointed out, "[T]he storage-transit dichotomy ... may be less than apt to address current problems. ... Technology has, to some extent, overtaken language. Traveling the internet, electronic communications are often - perhaps constantly --both 'in transit' and 'in storage' simultaneously, an linguistic but not a technological paradox." The court also noted, "The Wiretap Act's purpose was, and continues to be, to protect the privacy of communications."

It's time for Congress to step in on this one, and change a poorly written law that is ill adapted to current technology. This it should do quickly. As I have noted in previous articles in this space, this "loophole" threatens to extinguish the entire wiretap law, and acts as an open invitation to government agencies, ISPs, and others to read e-mails anywhere they are stored - even temporarily.

Copyright © 2004, SecurityFocus logo

SecurityFocus columnist Mark D. Rasch, J.D., is a former head of the Justice Department's computer crime unit, and now serves as Senior Vice President and Chief Security Counsel at Solutionary Inc.

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