Legislating Away Councilman

Senate bill proposes to close e-mail wiretapping “loophole” – Senator Leahy’s press release (S.936 – text not yet available at thomas.loc.gov

As two of the leading privacy advocates in the U.S. Senate, Leahy and Sununu sponsored the E-Mail Privacy Act to stave off the privacy erosions generated by a recent ruling of the First Circuit Court of Appeals in the United States v. Councilman case. Last year, the court, in a 2-1 ruling by a panel of the court that is being appealed to the full court, found it permissible for an Internet Service Provider (ISP), without permission, to systematically intercept, copy and read its customers’ incoming emails for corporate gain as the messages were being transmitted.

The court based its ruling on its interpretation of the 1986 Electronic Communications Privacy Act (ECPA), a law which Leahy wrote and sponsored.

“In what was clearly a strained reading of the law (ECPA), the court condoned an unacceptable privacy intrusion,” said Leahy, who is the ranking Democratic member of the Senate Judiciary Committee. “I know firsthand that we wrote and enacted that law with one purpose in mind – to ensure that Americans could enjoy the same amount of privacy in their online communication as they do in the offline world. Our bill would restate and underscore Congress’s intent and restore the law to its full purpose.”

This decision has serious ramifications beyond allowing ISPs to snoop among their customers’ e-mails, Leahy said. It would also allow the government to conduct searches without complying with the wiretap procedures that to date have been a standard part of investigative practice.