Feeds

Email privacy strikeout suspended

Wiretapping on demand

  • alert
  • submit to reddit

Build a business case: developing custom apps

Privacy groups have succeeded in persuading a First Circuit Appeals Court to reopen a case with some nasty unintended consequences for email users. A June ruling inadvertently opened the door for spooks and Feds to snoop on email without a court order, but that's now been suspended, pending the hearing in December.

In US vs Councilman a court decided that when email providers made a copy of your email - even for a few milliseconds - the US Wiretap Act doesn't apply. The defendent, an email service provider who sought to examine the contents for commercial advantage - like Google with its new Gmail service, which scans the email so it can display context-based advertisements - was acquitted. The Wiretap Act required law enforcement officers to get a warrant to snoop on email. Since this was considered to apply only to electrons in transit, all of a sudden, they didn't have to.

"Extending the court's disturbing approach, an entire surveillance system wouldn't be considered interception if it were built into local mail processing," internet researcher Seth Finkelstein told us.

The Courts this week admitted as much when it said it needed to re-hear the arguments.

"It may well be that the protections of the Wiretap Act have been eviscerated as technology advances," noted the panel, which examined a brief filed by public interest groups including the Electronic Freedom Foundation and the American Library Association.

The First Circuit encompasses Maine, Massachusetts, New Hampshire and Rhode Island, but the case is being watched far beyond the Eastern seaboard. One of the arguments thrown back at privacy groups concerned about Google's "creepy" Gmail service was that people who didn't like the T&Cs should use another service. But this can only work for the sender: recipients would be obliged to firewall out any correspondents who uses a Gmail account, or in this case, anyone who lives in Maine or Massachusetts.

Writing here in June, the former head of the DoJ's computer crime division, Mark Rasch, warned against a parallel consequence raised by one of Googles' favorite assertions - that computers are making the decisions, not humans, removing it of responsibility.

"If a computer programmed by people learns the contents of a communication, and takes action based on what it learns, it invades privacy", he wrote.

"Google may also argue that its computers do not learn the contents of the message while in transmission but only contemporaneously with the recipient, making wiretap law inapplicable. That argument, while technically accurate, is somewhat fallacious. If taken to its logical extreme, electronic communications are never intercepted in transmission. The packets must be stopped to be read. Fundamentally, we should treat automated searches of contents as what they are: tools used by humans to find out more about what humans are doing, and provide that information to other humans."

Two bills were introduced in Congress to make peeking at temporarily stored email illegal, but with a potentially lucrative advertising market up for grabs, the subject is sure to feature more prominently.

Thomas Pynchon last year described the internet as "a development that promises social control on a scale those quaint old 20th-century tyrants with their goofy moustaches could only dream about." So all the better you tick those consent boxes. ®

Related stories

Close the email wiretap loophole
Google's Gmail: spook heaven?
The battle for email privacy
America - a nation of corporate email snoops

A new approach to endpoint data protection

More from The Register

next story
Amazon says Hachette should lower ebook prices, pay authors more
Oh yeah ... and a 30% cut for Amazon to seal the deal
Philip K Dick 'Nazi alternate reality' story to be made into TV series
Amazon Studios, Ridley Scott firm to produce The Man in the High Castle
Nintend-OH NO! Sorry, Mario – your profits are in another castle
Red-hatted mascot, red-colored logo, red-stained finance books
Sonos AXES support for Apple's iOS4 and 5
Want to use your iThing? You can't - it's too old
Joe Average isn't worth $10 a year to Mark Zuckerberg
The Social Network deflates the PC resurgence with mobile-only usage prediction
Feel free to BONK on the TUBE, says Transport for London
Plus: Almost NOBODY uses pay-by-bonk on buses - Visa
Twitch rich as Google flicks $1bn hitch switch, claims snitch
Gameplay streaming biz and search king refuse to deny fresh gobble rumors
Stick a 4K in them: Super high-res TVs are DONE
4,000 pixels is niche now... Don't say we didn't warn you
prev story

Whitepapers

7 Elements of Radically Simple OS Migration
Avoid the typical headaches of OS migration during your next project by learning about 7 elements of radically simple OS migration.
Implementing global e-invoicing with guaranteed legal certainty
Explaining the role local tax compliance plays in successful supply chain management and e-business and how leading global brands are addressing this.
Consolidation: The Foundation for IT Business Transformation
In this whitepaper learn how effective consolidation of IT and business resources can enable multiple, meaningful business benefits.
Solving today's distributed Big Data backup challenges
Enable IT efficiency and allow a firm to access and reuse corporate information for competitive advantage, ultimately changing business outcomes.
A new approach to endpoint data protection
What is the best way to ensure comprehensive visibility, management, and control of information on both company-owned and employee-owned devices?