[12611] in cryptography@c2.net mail archive
Re: Wiretap Act Does Not Cover Message 'in Storage' For Short
daemon@ATHENA.MIT.EDU (Tim Dierks)
Wed Mar 5 14:12:40 2003
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X-Original-To: cryptography@wasabisystems.com
Date: Sun, 02 Mar 2003 19:44:06 -0500
To: cryptography@wasabisystems.com
From: Tim Dierks <tim@dierks.org>
In-Reply-To: <20030302134734.GA1869@comcast.net>
At 01:47 PM 3/2/2003 +0000, MindFuq wrote:
>* Tim Dierks <tim@dierks.org> [2003-03-02 12:27]:
> >
> > This would seem to imply to me that the wiretap act does not apply to=
any
> > normal telephone conversation which is carried at any point in its=
transit
> > by an electronic switch, including all cell phone calls and nearly all
> > wireline calls, since any such switch places the data of the ongoing=
call
> > in "storage" for a tiny fraction of a second.
>
>I believe the reason behind the 'in storage' rule is that someone
>could protect non-transmitted information under the Wiretap Act by
>transmitting it needlessly. Then they could say that because the
>information was transmitted, law enforcement now needs the more
>difficult to obtain wiretap permit just to search the premesis.
You may be correct as to intent, but the originally forwarded article says:
> The court relied on Konop
> v. Hawaiian Airlines Inc., which held that no Wiretap Act
> violation occurs when an electronic communication is
> accessed while in storage, "even if the interception takes
> place during a nanosecond 'juncture' of storage along the
> path of transmission." Case name is U.S. v. Councilman.
which includes the phrase "along the path of transmission."
In order to avoid overreaction to a nth-hand story, I've attempted to=20
locate some primary sources.
Konop v. Hawaiian Airlines:
http://laws.lp.findlaw.com/getcase/9th/case/9955106p&exact=3D1
My understanding is that Konop v. Hawaiian Airlines was a lawsuit by Robert=
=20
Konop against his former employer, Hawaiian Airlines. Mr. Konop had=20
operated a website where he published a variety of allegations about=20
Hawaiian, and he restricted access to that site by username and password. A=
=20
manager at Hawaiian gained the permission of two other employees of the=20
airline to use their names in accessing the website; Konop found out about=
=20
the access and sued Hawaiian. Among other grounds, he claimed that=20
management viewing his site constituted an "interception" of electronic=20
communications in violation of the wiretap act.
I won't go into any argument about the plausibility of this claim; I'll=20
just summarize the legal proceedings thereafter. The federal district court=
=20
which heard the case granted summary judgement against Konop on the wiretap=
=20
claims; the 9th circuit court of appeals then reversed the district court's=
=20
decision on the wiretap claims. Thereafter, the 9th circuit withdrew that=20
opinion, then affirmed the district court's original judgement against=20
Konop. Thus, the end result is that the wiretap claim does not hold. Why?
Amid other reasoning, the court refers to an old friend, Steve Jackson=20
Games, Inc. v. United States Secret Service. In summary, the fifth circuit=
=20
court determined that e-mail stored on a machine was not protected by the=20
wiretap act, because an "electronic communication" cannot be "intercepted"=
=20
in the same way that a "wire communication" can be. This reasoning has been=
=20
upheld with respect to voicemail messages.
There is a footnote that specifically addresses the interesting question:=20
that all electronic messages involve storage at some point, so the wiretap=
=20
act is meaningless with respect to electronic communication. The crucial=20
conclusion is:
>While this argument is not without appeal, the language and structure of=20
>the ECPA demonstrate that Congress considered and rejected this argument.=
=20
>Congress defined "electronic storage" as "any temporary, intermediate=20
>storage of a wire or electronic communication incidental to the electronic=
=20
>transmission thereof," 18 U.S.C. =A7 2510(17)(A), indicating that Congress=
=20
>understood that electronic storage was an inherent part of electronic=20
>communication. Nevertheless, as discussed above, Congress chose to afford=
=20
>stored electronic communications less protection than other forms of=20
>communication.
United States of America vs. Bradford S. Councilman:
http://pacer.mad.uscourts.gov/dc/opinions/ponsor/pdf/councilman2.pdf
The Government charged Mr. Councilman with conspiracy to violate the=20
wiretap act. Apparently, they claim that he used the contents of electronic=
=20
mail passing through his service for commercial gain.
The judge seems quite aware of the implications of the decision and the=20
effect of the Konop precedent, but dismisses the charge.
Based upon this rationale, it seems that one cannot be convicted of=20
violating the wiretap act unless one actually taps into electric signals.=20
For example, it would seem to continue to be illegal to intercept 802.11 RF=
=20
signals, but possible not be illegal to plug a cable into an ethernet hub=20
and copy all traffic on the subnet (since most hubs "store" packets=20
internally for transmission), and perfectly OK to subvert a router to=20
forward copies of all packets to you.
I'd be interested in any opinions on how this affects the government's need=
=20
to get specific wiretap warrants; I don't know if the law which makes=20
illicit civilian wiretapping illegal is the same code which governs the=20
government's ability (or lack thereof) to intercept communications.
- Tim
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