In a case that could redefine — or, some might argue, “debunk the myth of” — online privacy, a federal appeals court in California is reviewing a lower court’s definition of “interception” in the digital age.
The case, Bunnell v. Motion Picture Association of America, involves a hacker who in 2005 broke into a file-sharing company’s server and obtained copies of company e-mails as they were being transmitted. He then e-mailed 34 pages of those documents to an MPAA executive, who paid the hacker $15,000 for the job, according to court documents.
The issue boils down to the judicial definition of “intercept” in the electronic age, in which packets of data move from server to server, alighting for milliseconds before speeding onward.
In August 2007, U.S. District Judge Florence-Marie Cooper, in the Central District of California, ruled that the alleged hacker, Rob Anderson, had not intercepted the e-mails in violation of the 1968 Wiretap Act because the e-mails were technically in storage — if only for an instant — instead of in transmission.
“Anderson did not stop or seize any of the messages that were forwarded to him,” Cooper ruled. “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.”
In other words — as users are often warned, but as many refuse to believe — sending an unencrypted e-mail is the equivalent of writing a message on the back of a postcard. Anyone through whose hands it passes — or anyone nosy enough to crane their neck and look — can read such a message without violating the presumed right to privacy of either the sender or…