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Court Limits Privacy Of E-Mail Messages
Providers Free to Monitor Communications


Law professor Peter B. Swire said the ruling means e-mail service providers can intercept messages (Juana Arias -- The Washington Post)

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By Jonathan Krim
Washington Post Staff Writer
Thursday, July 1, 2004; Page E01

A company that provides e-mail service has the right to copy and read any message bound for its customers, a federal appeals court panel has ruled in a decision that could expand e-mail monitoring by businesses and the government.

The 2-to-1 decision by a panel of the U.S. Court of Appeals for the 1st Circuit in Massachusetts alarmed privacy advocates, who said it torpedoes any notion that e-mail enjoys the same protections as telephone conversations, or letters when they are sorted by mail carriers.

The court ruled that because e-mail is stored, even momentarily, in computers before it is routed to recipients, it is not subject to laws that apply to eavesdropping of telephone calls, which are continuously in transit. As a result, the majority said, companies or employers that own the computers are free to intercept messages before they are received by customers.

"This puts all of our electronic communication in jeopardy if this decision isn't reversed." said Jerry Berman, head of the Center for Democracy and Technology, a public interest policy group.

Peter B. Swire, an Ohio State University law professor who was a privacy adviser in the Clinton administration, said the ruling means that an e-mail provider "can intercept all your e-mail with impunity, and can read them and use them for its own business purposes."

Large companies that dominate e-mail services were quick to disclaim any desire to read their customers' e-mail. America Online, Microsoft Corp., EarthLink Inc., Comcast Corp. and Yahoo Inc. have policies governing their terms of service that generally state that they do not read customers' mail or disclose personal information unless required by law enforcement agencies.

"AOL does not monitor or intercept member communications, in accordance with AOL's privacy policy and terms of service," said Nicholas J. Graham, a company spokesman.

EarthLink spokeswoman Carla Shaw said the company does not "retain copies of e-mails, and we don't read individual e-mails."

But a small online company that sold out-of-print book lists did just that, sparking the case decided Tuesday by the appeals court. The now-defunct firm, Interloc Inc., also provided e-mail service to its members.

In January 1998, according to prosecutors, an Interloc vice president, Bradford C. Councilman, directed the firm's engineers to make copies of all incoming mail to its members from Inc., which also sells books.

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