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Last week, on August 11, a federal appeals court reaffirmed the privacy protections accorded email by reversing a troubling ruling that would have prevented law enforcers from prosecuting an email service provider that allegedly intercepted its customers' email messages. In United States v. Councilman, the full First Circuit Court of Appeals overturned an earlier decision by a three judge panel that had held, unexpectedly, that an ISP could read and use its customer's emails if they were intercepted when the email was in intermediate storage before it had reached the customer's mailbox. The original Councilman decision, while relatively narrow and arguably not of great significance given industry and Justice Department practice, highlighted the now-outdated distinctions that the Electronic Communications Privacy Act (ECPA) draws between communications in transit and those in storage, between opened and unopened email, and between relatively new and older email.
(1) Federal Appeals Court Reaffirms E-Mail Privacy Protections
(2) Narrow Decision Leaves Key Questions Unanswered
(3) Larger Privacy Questions Looming