Appeals Court Preserves Email Privacy

Massachusetts - In a long-awaited decision, the full First Circuit Court of Appeals today overturned a First Circuit panel decision that had allowed an email service provider to secretly monitor the content of users' incoming messages without violating federal wiretap law. The Electronic Frontier Foundation (EFF) and other privacy organizations submitted briefs in the case urging that the earlier decision be reheard by all seven First Circuit judges.

The defendant in the case, Bradford Councilman, is a seller of rare and used books who also offered email service to customers. Councilman had secretly configured this system to copy all customer email coming from, his competitor, and send it to him. The original First Circuit panel had declared this action to be legal because the messages were in "electronic storage" on the defendant's system for a few milliseconds when they were copied. Thus, the panel argued, Councilman was not in violation of the Wiretap Act. Instead, the panel said that only the Stored Communications Act (SCA) applied to his activities. And the SCA does not place any limits on a communications provider's access to customers' stored messages.

The full court's new decision makes clear that even though emails are stored in computer memory during transmission, it is still criminal to intercept those messages without the user's permission or a court-issued wiretap order. The Wiretap Act doesn't apply merely to communications that are tapped from the wire, but also covers communications that are in "transient electronic storage that is intrinsic to the communication process," according to the court.

"Today's decision reaffirms that email providers can't snoop on their customers' incoming messages any time they like, and that the law protects the privacy of your email just as much as it protects the privacy of your phone calls," says Kevin Bankston, EFF attorney and Equal Justice Works Fellow. "The First Circuit correctly recognized that when law professors, privacy activists, the Department of Justice, and the drafters of the law all agree on what the wiretap statute means, as was the case here, they probably know what they're talking about."


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

Kurt Opsahl
Staff Attorney
Electronic Frontier Foundation