Even as a huge ring of hackers affecting consumers largely in the Boston area has been smoked out, we learn that your online privacy and mine is less private and more vulnerable to government wiretapping. For this we can thank Judge Florence-Marie Cooper in California's 9th District. Our communications are now more open to legal interception.
The new loopholes are all about timing.
"The issue boils down to the judicial definition of an intercept in the electronic age, in which packets of data move from server to server, alighting for milliseconds before speeding onward."
For now, the decision affects only those within California's 9th District. But it's a useful precedent for lawyers acting on behalf of individuals, businesses and government interests who want expanded access to your personal information.
"'The case is alarming because its implications will reach far beyond a single civil case,' wrote Kevin Bankston, a senior attorney for the Electronic Frontier Foundation in a friend-of-the-court brief filed Friday. If upheld, the foundation argued, 'law enforcement officers could engage in the contemporaneous acquisition of e-mails just as Anderson did, without having to comply with the Wiretap Act's requirements.' Those requirements are strict, including a warrant based on probable cause as well as high-level government approvals and proof alternatives would not work.
"Cooper's ruling also has implications for non-government access to e-mail, wrote Bankston and University of Colorado law professor Paul Ohm in EFF's brief. 'Without the threat of liability under the Wiretap Act,' they wrote, 'Internet service providers could intercept and use the private communications of their customers, with no concern about liability' under the Stored Communications Act, which grants blanket immunity to communications service providers where they authorize the access.
"Individuals could monitor others' e-mail for criminal or corporate espionage 'without running afoul of the Wiretap Act,' they wrote.
"'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.'"
