Wiretap Act Does Not Cover Message 'in Storage' For Short Period (was Re: BNA's Internet Law News (ILN) - 2/27/03)

[Ronald L. Rivest]

Yes, I was amazed at this ruling as well.

This ruling seems to fly in the face of the likely intent of
Congress when it passed Wiretap Act.

If things continue in this direction, we will soon have
rulings and regulations that say:

     -- Carriers must put all calls in storage for a minimum
        period of time, sufficient to allow wiretapping.
        (Indeed, regulation may not be necessary, as digitization and
         buffering of communications is common practice; the
         transient use of storage to effect communications
         efficiency and reliability should not provide a wiretap
         loophole.)

     -- Wiretapping is OK for any phone calls that are routed
        through a satellite.

     -- It is OK for the government to house soldiers in your
        house, as long as there is even the tiniest opening somewhere in
        your house (e.g. a window open, or a chimney flue)
        so that "inside" and "outside" connect.

     -- Etc.

I can also see a market developing for "storage-free" communications
carriers.  What happens when you inquire of your carrier as to
whether it can provide such a guarantee or option?

         Cheers,
         Ron

At 09:42 PM 3/1/2003, Tim Dierks wrote:
>At 01:39 PM 2/27/2003 -0500, R. A. Hettinga wrote:
>>At 9:01 AM -0500 on 2/27/03, BNA Highlights wrote:
>> > WIRETAP ACT DOES NOT COVER MESSAGE 'IN STORAGE' FOR SHORT
>> > PERIOD
>> > BNA's Electronic Commerce & Law Report reports that a
>> > federal court in Massachusetts has ruled that the federal
>> > Wiretap Act does not prohibit the improper acquisition of
>> > electronic communications that were "in storage" no matter
>> > how ephemeral that storage may be. The court relied on Konop
>> > v. Hawaiian Airlines Inc., which held that no Wiretap Act
>> > violation occurs when an electronic communication is
>> > accessed while in storage, "even if the interception takes
>> > place during a nanosecond 'juncture' of storage along the
>> > path of transmission."  Case name is U.S. v. Councilman.
>> > Article at
>> > <http://pubs.bna.com/ip/BNA/eip.nsf/is/a0a6m6y1k8>
>> > For a free trial to source of this story, visit
>> > http://web.bna.com/products/ip/eplr.htm
>
>This would seem to imply to me that the wiretap act does not apply to any 
>normal telephone conversation which is carried at any point in its transit 
>by an electronic switch, including all cell phone calls and nearly all 
>wireline calls, since any such switch places the data of the ongoing call 
>in "storage" for a tiny fraction of a second.
>
>  - Tim
>
>
>
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Ronald L. Rivest
Room 324, 200 Technology Square, Cambridge MA 02139
Tel 617-253-5880, Fax 617-258-9738, Email <rivest at mit.edu>



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