MPAA argues that e-mails it obtained for its case were technically not “intercepted” in violation of federal wiretapping law since the hacked server from which they were sent stored them for several milliseconds before transmission.
Though TorrentSpy, once one of the more popular BitTorrent tracker sites around, is long gone, the case still reverberates throughout the online community for it may have disastrous implications for online privacy as we know it.
If you recall, back in 2005 a hacker broke into TorrentSpy’s server and configured it to copy and forward all incoming and outgoing email to his personal account which he later sold to the MPAA for $15,000 USD for use in building its copyright infringement case against the site.
When the e-mails were presented in court Judge Florence-Marie Cooper ruled that they had not been intercepted in violation of the 1968 Wiretap Act because because the e-mails were stored on the mail server for several milliseconds during transmission, they were not technically “intercepted.”
“Anderson did not stop or seize any of the messages that were forwarded to him,” wrote Judge Cooper in her decision. “Anderson’s actions did not halt the transmission of the messages to their intended recipients. As such, under well-settled case law, as well as a reading of the statute and the ordinary meaning of the word ‘intercept,’ Anderson’s acquisitions of the e-mails did not violate the Wiretap Act.”
However, many have pointed out that the ruling has severe implications for online privacy for it means that so long as you have access to any server that handles an e-mail as it flows across the internet it’s technically not being “intercepted.” Government go thus simply circumvent wiretapping laws by routing e-mails through its servers.
“It could really gut the wiretapping laws,” said Orin S. Kerr, a George Washington University law professor and expert on surveillance law. “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 email arrives,’ and it would not be a wiretap.”
The Electronic Frontier Foundation (EFF) has filed an amicus (friend-of-the-court) brief pointing out that the “ruling is incorrect as a matter of law and must be overturned in order to prevent the government from engaging in similar surveillance without a court order.”
From the brief:
Most worrisome is 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. For example, if the FBI installed a network wiretapping device at a point where electronic communications are stored for milliseconds before continuing to their destination, the Bureau would not have to obtain an intercept order under the Wiretap Act, but could instead proceed under the SCA’s less stringent requirements, even though such surveillance represents “a series [of intrusions] or a continuous surveillance”
under Berger, 388 U.S. at 57.
Once again we have a case involving illegal file-sharing that is about much, much, more. It’s not about copyright infringement, but rather about the rule of law and the lengths to which copyright holders are allowed to go in order to target suspected file-sharers. Just as we would never allow the govt to invade our homes and our privacy without first legally acquiring the necessary warrants to obtain evidence, so too must we never allow private business interests to do the same.