Instructed by top management to seek out sensitive information on a competitor, a company's top computer whiz uses his skills to read the rival's daily messages stored on the central computer of a major electronic mail company.
A crime? Probably not.
An official of a law enforcement agency wanting to build a dossier on a multinational corporation's currency activities taps into the company's internal computer-to-computer communications network without obtaining a warrant.
Unauthorized? Probably not, according to members of Congress who are preparing legislation to close such perceived gaps in federal law. The legislation, expected to be introduced early next month by Sen. Patrick Leahy (D-Vt.) and Rep. Robert Kastenmeier (D-Wis.), is part of an effort to bring the law more in line with the ramifications of computer technology on privacy, the individual and business.
"When a lot of us were growing up, if you wanted to protect your papers, you put a lock on your door," said Leahy. "But the days when physical control guaranteed your security are over. . . . I think this legislation will pass in this Congress."
In the process, a potentially powerful new alliance is emerging of civil liberties groups and high technology businesses, seeking to assure that the rapidly expanding computer communications networks enjoy at least the same level of privacy protection as the more traditional forms of communications.
"Everybody in the industry and the civil rights community is supporting this," said Michael Cavanaugh of the Electronic Mail Association, a group of companies that provide computer-based messaging services.
The electronic mail business -- which relies on computer-to-computer communications -- is already a billion-dollar industry and is expected to grow into multibillion dollar status by the end of the decade as more companies employ computers to both collect and distribute both internal and external messages.
"We're seeing the emergence of a coalition on a vast range of electronic publishing issues," asserted Jerry J. Berman, a lawyer who oversees the American Civil Liberties Union's Privacy and Technology Project.
Berman points out that individuals should be concerned if legal loopholes allow unauthorized access to computerbased files. Similarly, computer networking companies peddling database and message services fear that the potential for unauthorized access could reduce the market appeal of their offerings.
Indeed, while tampering with computer files or "hacking" computers to steal goods and services is clearly a crime, electronic trespassing isn't because the existing laws weren't written to cope with a world where computers -- not humans -- communicated with each other.
For example, the 1968 Omnibus Crime Bill Title III wiretap provisions specify that monitoring "aural" communications over the phone lines requires a special warrant. Consequently, wiretapping computer conversations without a warrant may be perfectly legal.
Similarly, it may not be illegal if private companies eavesdrop on computer communications.
By the same token, even though most people think of electronic mail as messages in electronic form, electronic mail does not enjoy the same protection as paper mail. The law currently treats electronic mail as a form of record -- like bank records -- and is thus more vulnerable to legal examination.
"We're looking to create a whole new right of privacy for electronic databases," said the ACLU's Berman.
"Electronic messages ought to have the same protections that the law has given to first class mail and telephone conversations," said the Electronic Mail Association's Cavanaugh.
Cavanaugh referred to a recent episode where The Source, a popular personal computer networking company based in McLean, was faced with a subpoena from a federal prosecutor demanding access to electronic mail transactions.
Charging that a Source user had used the network to help traffic cocaine, the U.S. Attorney's office in Detroit subpoenaed the Source's records, arguing that the network had no legal basis to refuse the request. The Source declined, asserting that the messages it carries are not under its legal control. Consequently, the Source said it didn't have the right to reveal any of the requested messages.
The issue was never settled because the defendant decided to plead guilty but the question of legal access to electronic mail remains cloudy under present law.
"We wouldn't release our mail records to anybody without a subpoena or at least without notifying them," said GTE Telenet's Phil Walker. GTE Telenet is a major electronic mail carrier.
"But our issue is not so much with government access as it is the much more important issue of legislation to protect computer systems from unauthorized access," said Walker.
He pointed out that "there is no uniformity of law on the state level" and that a major "Computer Crime" bill passed last October only addresses the problem for federal government computer systems and systems maintained by the financial community.
The proposed bills, which reportedly will enjoy bipartisan support, would amend the wiretap provisions to create felony penalties for tapping into data transmissions as well as create a new crime for unauthorized access to private computer systems. The law would also create civil penalties for those offenses.
The ACLU's Berman stresses that legislation is necessary because the courts seem unable to come to grips with the impact of new technology on exisiting case law.
"Based on recent decisions by the courts," said Berman, "they seem unable to understand the complexity of the technology or the appropriate rationale for privacy protection."