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Communications Privacy: A Significant (If Quiet) Ruling

by Joe Laferrera  |  
November 9, 2004

Privacy. Highly valued by patriots and scoundrels alike. We sometimes seem torn about whether our society needs more privacy or less.

Although "privacy" is not even mentioned in the Constitution or Bill of Rights, the Supreme Court has long recognized it to be among the rights guaranteed to every citizen by those documents. Like all civil rights, however, privacy has its limits, and it must sometimes bow to the demands of public safety and national security.

Congress tried to strike a balance in 1968 with the passage of the so-called "Wiretap Act," which strictly limited the conditions under which certain communications could be intercepted. In recent years, terrorist threats and advances in technology have altered that balance, forcing lawmakers and others to re-examine the issue.

The scales tipped in June, perhaps dramatically, when the First Circuit Court of Appeals in Boston issued its decision in United States v. Councilman. In that case, the Court concluded that the federal Wiretap Act did not prohibit an Internet service provider (ISP) from surreptitiously diverting and reading its customers' emails.

Although that fact alone should give pause to all email users, the logic driving the decision may portend even broader application. The court's reading of the Act may extend to more traditional modes of communications and greatly ease the government's ability to tap telephone calls.

The defendant in the case, Bradford Councilman, was the vice-president of a company involved in the online sale of rare and out-of-print books. His company, Interloc, had provided email service to its book dealer customers.

Councilman and others at the company devised a scheme to secretly divert emails sent by rival to those customers' Interloc email accounts, so that Interloc employees could examine them for competitive advantage. In July 2001, the government indicted Councilman and others for intercepting those emails in violation of the Wiretap Act. Councilman challenged the indictment, contending the Act did not apply.

The fundamental question for the Court was whether emails qualify as electronic communications, the interception of which is forbidden by the Act.

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Joe Laferrera is a partner at the Boston firm of Gesmer Updegrove LLP ( He is a member of the litigation and employment departments and frequently advises clients on intellectual property and privacy matters. Reach him at

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