LOS ANGELES, CA — A federal appellate court in California is expected to render a ruling that could change the face of online privacy.The 9th Circuit Court of Appeals has been asked to overturn a lower court’s decision that intercepting email without a warrant does not violate U.S. wiretapping laws. The case, Bunnell v. Motion Picture Association of America, is related to cases pending against The Pirate Bay and other sites that facilitate the location of sometimes illegally shared files.
At issue is whether the MPAA acted illegally in hiring a TorrentSpy contractor to hack into the company’s mail server and use a “copy and send” function to provide the MPAA with emails sent and received by TorrentSpy employees and management. TorrentSpy, a BitTorrent search engine, shut down in March when it was unable to continue defending itself against a copyright suit filed against it by the MPAA.
According to court documents, in 2005 the MPAA paid Robert Anderson $15,000 for 34 pages of email he copied during its transmission into or out of TorrentSpy’s email server. Anderson admitted he had hacked into TorrentSpy’s email server in order to obtain the documents. The MPAA saw the email as evidence of collusion between TorrentSpy and The Pirate Bay and evidence the two companies knowingly allowed their users to violate copyright law.
“We were going to get information about the location and identity of the people who were running TorrentSpy, as well as information related to a general conspiracy and relationship between TorrentSpy and a number of other prominent services including The Pirate Bay,” Dean Garfield, an MPAA executive, testified during a 2007 lawsuit filed against the MPAA by TorrentSpy and heard by Judge Florence-Marie Cooper in the Central District of California.
MPAA representatives have said Anderson already possessed the pilfered emails before contacting them.
In addition, “The information was obtained in a legal manner from a confidential informant who we believe obtained the information legally,” MPAA spokeswoman Elizabeth Kaltman told The Washington Post.
Cooper ruled against TorrentSpy, saying Anderson had not intercepted the emails in violation of the 1968 Wiretap Act because technically the emails were in storage, if only for milliseconds, on TorrentSpy’s server.
“Anderson did not stop or seize any of the messages that were forwarded…,” Cooper wrote in her decision. “Anderson’s actions did not halt the transmission of the messages to their intended recipients. As such, under well-settled case law, as well as a reading of the statute and the ordinary meaning of the word ‘intercept,’ Anderson’s acquisitions of the e-mails did not violate the Wiretap Act.”
TorrentSpy appealed.
“We believe that the MPAA, when it paid $15,000 for about 30 pages of emails, knew or should have known they were involved in purchasing something in a wrongful manner,” TorrentSpy’s attorney, Ira Rothken, said.
Of greater concern than TorrentSpy’s alleged status as a victim of industrial espionage are questions Cooper’s decision and the appeal raise for the internet community at large, according to the Electronic Frontier Foundation, which has filed an amicus brief supporting TorrentSpy. EFF argues Cooper’s ruling is “dangerous” and incorrect as a matter of law and must be overturned in order to prevent the government from engaging in similar surveillance without a court order.
“The case is alarming because its implications will reach far beyond a single civil case,” EFF Senior Staff Attorney Kevin Bankston wrote in the brief. “The district court’s decision, if upheld, would have dangerous repercussions far beyond this single case. That court opinion — holding that the secret and unauthorized copying and forwarding of emails while they pass through an email server is not an illegal interception of those emails — threatens to wholly eviscerate federal privacy protections against internet wiretapping and to authorize the government to conduct similar email surveillance without getting a wiretapping order from a judge.”
Bankston also noted Cooper’s ruling could have implications beyond government surveillance.
“Without the threat of liability under the Wiretap Act, internet service providers could intercept and use the private communications of their customers, with no concern about liability” under the Stored Communications Act, which grants blanket immunity to communications service providers where they authorize the access, Bankston wrote in the brief.
Allowing Cooper’s ruling to stand “could really gut the wiretapping laws,” Orin S. Kerr, a George Washington University law professor and expert on surveillance law, told The Washington Post. “The government could go to your internet service provider and say, ‘Copy all of your email, but make the copy a millisecond after the email arrives,’ and it would not be a wiretap.”
