Good news for privacy advocates - the First Circuit reversed its decision in a key email intercept case. In the case, Bradford Councilman, vice president of online bookseller Interloc (now part of Alibris), allegedly snooped through customer email addressed to competitors like Amazon. He was able to do this by offering email accounts as part of his service.
The U.S. Wiretap Act was written before email was popular. The earlier court decision essentially said that emails weren't protected because of the way the Wiretap Act was written - the emails were in storage, and not protected by the Act.
Yesterday's decision 5-2 interprets "electronic communication" more broadly to include email messages in transient storage, and finally makes it illegal to snoop email (at least in that way).
See also http://i-newswire.com/pr41879.html
From the opinion, U.S. v. Councilman, 2005 U.S. App. LEXIS 16803 (August 11, 2005)
Although the text of the statute does not specify whether the term "electronic communication" includes communications in electronic storage, the legislative history of the ECPA indicates that Congress intended the term to be defined broadly. Furthermore, that history confirms that Congress did not intend, by including electronic storage within the definition of wire communications, to thereby exclude electronic storage from the definition of electronic communications.
We therefore conclude that the term "electronic communication" includes transient electronic storage that is intrinsic to the communication process, and hence that interception of an e-mail message in such storage is an offense under the Wiretap Act. Moreover, the various doctrines of fair warning do not bar prosecution for that offense. Consequently, the district court erred in dismissing the indictment.