computer email and privacy.txt

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(18 U.S.C. sec. 2510(1).)  The old law required that an interception of a
wire communication be an aural acquisition of the communication.  (18 U.S.C.
sec. 2510(4).)  Being "aural," the communication must be "heard."
Therefore, a computer communication may come under the old law while being
transmitted.  After a caller's message is "sent" on a remote computer
system, the message is then stored within the computer's system.  The
communication's conversion into computer stored data, thus no longer in
transmission until retrieved, takes the communication out of the old
statutory protection.

     "Eighteen years ago ... Congress could not appreciate - or in some
cases even contemplate - [today's] telecommunications and computer
technology...."  (132 Cong. Rec. S7992 (daily ed. June 19, 1986) (statement
of Sen. Leahy).)

CALIFORNIA'S INVASION OF PRIVACY AND WIRETAP STATUTE

     California's "invasion of privacy" and wiretap statutes (Cal. Penal
Code sec. 630 et seq.), appears to provide state protection for BBSs.
California Penal Code sec. 637 reads as:

     Every person not a party to a telegraphic or telephonic
     communication who willfully discloses the contents of a
     telegraphic or telephonic message, or any part thereof, addressed
     to another person, without the permission of such person, unless
     directed so to do by the lawful order of a court, is punishable
     by imprisonment in the state prison, or in the count jail not
     exceeding one year, or by fine not exceeding five thousand
     dollars ($5000), or by both fine and imprisonment.

     Again, the question here would be whether "telegraphic or telephonic
messages" include computer communications via modem where a transmitted
message is subsequently stored within a computer awaiting retrieval by its
intended recipient.  Again, the storage of the data takes the computer
communications out of the statute.  When the statute was passed, the
California legislature, much like the Congress, could not foresee the
technological advances in computer communications.

     It should be noted that Assemblywoman Moore introduced legislation in
1985 that would amend have the California state constitution to explicitly
provide state constitutional privacy protection for remote computing
services and their stored information.  However, nothing has come out of
this.  Aside from political reasons for the lack of further action is one
possible legal consequential argument against the amendment may be if
computer privacy protection is specified in the state constitution, more
litigation may result to tie up the courts in cases deciding whether or not
there is privacy protection for other unspecified matters.  Although,
overall, the California state constitution is much more specific than the
United States Constitution, it may be best to not be any more specific with
regard to privacy.

PROTECTION FOR U.S. MAIL

     Statutory U.S. Mail protection provides a suggestion for statutory
provisions of privacy protection for E-Mail deposited in electronic
communication systems.  The unauthorized taking out of and examining of the
contents of mail held in a "depository for mail matter" before it is
delivered to the mail's intended recipient is punishable by fine,
imprisonment, or both.  (18 U.S.C. sec. 1702.)


                           SOLUTION - THE NEW LAW

     There are two methods towards a solution:  (1) court decisions; and (2)
new legislated privacy protection.

COURT DECISIONS

     Courts may have chosen to read computer communications protection into
the old federal wiretap statute or into existing state law.  However, they
were reluctant to do so.  Courts "are in no hurry to [revise or make new law
in this area] and some judges are openly asking Congress for help....
[F]ederal Appeals Court Judge Richard Posner in Chicago said Congress needed
to revise current law, adding that 'judges are not authorized to amend
statutes even to bring them up-to-date.'"  (Cohodas, Nadine, "Congress Races
to Stay Ahead of Technology," Congressional Quarterly Weekly Report, May 31,
1986, p. 1233.)

NEW STATUTE

     Last October 21, 1986, President Reagan signed the Electronic
Communications Privacy Act of 1986 amending the federal wiretap law.  The
new Act (P.L. 99-508) would not take immediate effect until three months
after the signing - presumably January 21, 1986.  (18 U.S.C. secs. 111 and
202.)

     When the new law does take effect, it would first provide privacy
protection for any

     'electronic communication' ... [by] any transfer of signs,
     signals, writing, images, sounds, data or intelligence of any
     nature transmitted in whole or in part by a wire, radio,
     electromagnetic, photoelectronic or photooptical system that
     affects interstate or foreign commerce...."

(18 U.S.C. sec. 2510(10).)

     Second, and more importantly for this discussion, ECPA would protect
"stored wire and electronic communications," i.e. E-Mail stored and backed
up on disk or tape on an electronic computer communication system.  (18
U.S.C. sec. 2701(a)(1) and (2).)  The legislation makes it a federal
criminal offense to break into any electronic system holding copies of
messages or to exceed authorized access to alter or obtain the stored
messages.  (Ibid.)

     The legislation would protect electronic computer communication systems
from law enforcement invasion of user E-Mail without a court order.  (18
U.S.C. sec. 2703.)  Although the burden of preventing invasion of the E-Mail
is placed on the subscriber or user of the system, the government must give
him notice allowing him fourteen days to file a motion to quash a subpoena
or to vacate a court order seeking disclosure of his computer data.  (18
U.S.C. sec. 2704(b).)  However, the government may give delayed notice when
there are exigent circumstances as listed by the Act (18 U.S.C. sec. 2705.)

     The legislation gives a civil cause of action to the provider or
operator, subscriber, customer or user of the system aggrieved by an
invasion of private material stored in the system in violation of ECPA.  (18
U.S.C. sec. 2702; see also 18 U.S.C. sec. 2520.)  If the provider or
operator has to disclose information stored on his system due to a court
order, warrant, subpoena, or certification under ECPA, there can be no cause
of action against him by any person aggrieved by such disclosure.  (18
U.S.C. sec. 2703(e); see also sec. 2702(b).)

     The electronic communications, under this new Act, must be sent by a
system that "affects interstate or foreign commerce."  (18 U.S.C. sec.
2510(12).)  The "electronic communications" may practically be limited to
electronic communications sent by common carrier telephone lines.

     There may be some question as to whether or not ECPA is confined to
commercial systems and does not cover user-operated bulletin board systems.
That would be similar to arguing the old federal wiretap law was confined to
long distance communications and not to local telephone calls.  The House
report (H.R. No. 647, 99th Cong. (1986)), indicates user-operated BBSs are
intended to be covered by the Act.  The House noted a difference between
commercial subscription systems and user-operated BBSs readily accessible by
the public.  However, it also noted the different levels of security found
on user-operated BBSs, i.e. the difference between system areas containing
private electronic mail and other areas containing public information.
Electronic communications that the operator attempts to keep confidential
would be protected by ECPA, while there would be no liability for access to
features configured to be readily accessible by the general public.
Language in the Act also refers to "the person or entity providing the wire
or electronic communication service."  Such language may be seen to indicate
the inclusion of individuals who operate a BBS.  (18 U.S. secs. 2701(c)(1)
and 2702(a)(1) and (b).)  Additionally, a remote computing service was
defined in the Act as an electronic communications system that provides
computer storage or processing services to the public.  (18 U.S.C. sec.
2710(2).)  This would certainly be applicable to a user-operated BBS that
is easily accessible to public with the simple dialing of a telephone number
by a modem-equipped computer.  On the political side, Senator Leahy, a
principal sponsor of the Act was reported to have been "soliciting [users
and operators' of BBSs] comments and encourage sensitivity to the needs of
BBS's in the legislation....  They are ... willing to listen to our side of
things."  (BBSLAW02.MSG, dated 07/24/85, information from Chip Berlet,
Secretary, National Lawyers Guild Civil Liberties Committee, transmitted by
Paul Bernstein, SYSOP, LAW MUG, Chicago, Illinois 312/280-8180, regarding
Federal Legislation Affecting Computer Bulletin Boards, deposited on The
Legacy Network 213/553-1473.)


                                 CONCLUSION

     Electronic mail stored on computer communication systems have Fourth
Amendment constitutional privacy protection.  Unfortunately, before the
Electronic Communications Privacy Act of 1986, such protection was not
articulated by federal or state statutory guidelines.  Case law also did
not provide any helpful guidance.  The peculiarities of computers and
computer storage posed problems which were not addressed by the old wiretap
laws.  They were also problems overwhelmed by constitutional privacy law as
defined by the United States Supreme Court.  A legislative solution was
required and was provided for by ECPA.

     [For more information on ECPA, see 132 Cong. Rec. H8977 (daily ed.
October 2, 1986) or "Major Provisions of 1986 Electronic Privacy Act,"
Congressional Quarterly Weekly Report, October 11, 1986, 2558.]