8/7/2008 1:03:09 A.M. Eastern Daylight Time, dailybriefing@njsba-njldailybriefing.com writes:
- NINTH CIRCUIT CASE COULD 'GUT' WIRETAPPING LAWS
- A case that may determine the standard of privacy for your e-mail is before the 9th U.S. Circuit Court of Appeals in California. Bunnell v. Motion Picture Association of America involves a hacker hired by an MPAA executive to obtain a stream of confidential financial e-mail messages sent by the file-sharing company Valance Media, with which the MPAA is involved in a copyright infringement lawsuit. The hacker did it by catching them during the few milliseconds they were stored on one of many intermediate servers during transmission - and therein lies the rub. It's a violation of the 1968 Wiretap Act to intercept private communications in transmission, but a U.S. District judge ruled in August that the e-mail wasn't in transmission, but technically in temporary storage when the hacker tapped into it. Says George Washington University Law Professor Orin Kerr, a ruling that upholds the lower court "could really gut the wiretapping laws. The government could go to your internet service provider and say, 'Copy all of your e-mail, but make the copy a millisecond after the e-mail arrives' and it would not be a wiretap." 8-7-08
Washington Post
On occasion, I may have mentioned that judges
deal rather poorly with the adaptation of law to new technology. So it should come as no surprise that it's happened yet again.