The U.S. Court of Appeals Ninth Circuit currently is reviewing the extent to which the “interception” prohibitions of the federal Wiretap Act apply when e-mails are copied in transit. The court’s decision could have a significant impact on Internet privacy issues, particularly with respect to e-mail surveillance.

In Bunnell v. Motion Picture Association of America, the MPAA allegedly violated the federal Wiretap Act by paying Rob Anderson, a former employee of TorrentSpy (a peer-topeer search engine that facilitates file-sharing) $15,000 to hack in to the TorrentSpy email server. Anderson allegedly hacked in to the server in 2005 and obtained copies of internal company e-mail messages (including e-mails and financial statements sent by TorrentSpy executives) as they were being transmitted. He then e-mailed the copies to the MPAA.

At issue in the case is whether Anderson’s copying constitutes an “interception” under the federal Wiretap Act. That Act bars unauthorized interception of electronic communications, including e-mail, while the communications are being transmitted. The Act does not extend, however, to communications and data that are being stored on a server.

Because Anderson allegedly made copies of the e-mail messages while they were stored on the e-mail server, the trial court held that Anderson’s actions did not violate the Wiretap Act. Although the e-mail messages were stored only for milliseconds before continuing on to their destination, the court agreed with MPAA that the actions technically did not constitute an “interception.” Justin Bunnell, a TorrentSpy employee, appealed the decision.

The Electronic Privacy Information Center (EPIC) and the Electronic Frontier Foundation (EFF) both filed amicus curiae briefs in the Ninth Circuit case in support of Bunnell. EPIC argued that in passing the Wiretap Act, Congress “intended to bar the interception of e-mail messages at all stages of the messages’ transmittal” and that the lower court’s decision “threatens to strip citizens of vital privacy safeguards.”

EFF stated that upholding the district court decision “would remove a vast amount of communications from the protection of the Wiretap Act,” noting 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.”

It also stated that “without the threat of liability under the Wiretap Act, Internet service providers could intercept and use the private communications of their customers,” and that “individuals could freely monitor others’ email for criminal or corporate espionage purposes without running afoul of the Wiretap Act.”

As privacy advocates point out, a decision in favor of the MPAA could have widespread consequences with respect to both privateand public-sector e-mail surveillance. Moreover, depending on how the transmissions are made, the decision in Bunnell could impact other Internet-based transmissions and online activity. 

Bunnell is case number 07-56640 in the U.S. Court of Appeals for the Ninth Circuit.

FOR MORE INFORMATION

EPIC filed an amicus curiae brief, which can be found here, along with other legal documents relating to the case, such as the trial court opinion and Bunnell's appeal brief.

EFF's amicus curiae brief in support of Bunnell can be found here.