Boston, MA - The First Circuit Court of Appeals decided today to rehear argument in a case that could have a profound effect on email privacy. Last month, the Electronic Frontier Foundation (EFF) submitted a friend-of-the-court brief in the case, US v. Councilman, urging such a rehearing.

In the earlier decision, a panel of First Circuit judges ruled that an email service provider did not violate criminal provisions of the Wiretap Act by monitoring the content of users' incoming messages without their consent. However, the Wiretap Act is the same law that requires the government to get a wiretap order before intercepting emails, and the panel decision could be read to eliminate this requirement. As the panel itself admitted, "it may well be that the protections of the Wiretap Act have been eviscerated as technology advances."

The brief requesting a rehearing, authored by law professors Orin Kerr and Peter Swire and cosigned by a number of civil liberties organizations, argued that the original panel decision in the Councilman case should be reheard by the entire First Circuit Court of Appeals.

"The First Circuit clearly understands the need to quickly reconsider the court's earlier ruling, which raised significant constitutional questions and threatened to disrupt the traditional understanding of wiretap law," said Kevin Bankston, EFF attorney and Equal Justice Works/Bruce J. Ennis fellow. "Upon rehearing the case, the full First Circuit should recognize that the original decision rewrote the field of Internet surveillance law in ways that Congress never intended."

The original panel decision has been withdrawn pending the First Circuit's rehearing of the case, which will occur in December.


Kevin Bankston
Attorney, Equal Justice Works / Bruce J. Ennis Fellow
Electronic Frontier Foundation

Related Issues