One of the repeated lessons of Blown to Bits is that metaphors matter. We use them to describe digital phenomena, and then we use our intuitions based on the metaphor to decide how things should work or what should be prohibited.

Under the federal Wiretap Act, it is illegal to “intercept” an email. But what does that mean in a digital world in which messages are repeatedly stored momentarily in one computer and forwarded to another computer? Does “intercepting” just mean catching the bits in transit between computers? If you snarf a copy from an intermediary computer during the milliseconds while the bits are stored there, is that “interception” too?

Not according to a district judge in California. The case of Bunnell et al v. the Motion Picture Association of America involves a hacker named Anderson who was hired by the MPAA to obtain records from a file-sharing service that was distributing digital movies. Anderson managed to gain access to the service’s email server and have copies of emails forwarded to him, which he then passed on to the MPAA in exchange for $15,000. The company complained that this constituted an illegal theft of its corporate email. The judge ruled no, as reported by the Washington Post.¬†”Anderson did not stop or seize any of the messages that were forwarded to him. 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.”

The case is being appealed, and the Electronic Frontier Foundation filed an amicus brief asking that the judge’s interpretation of “interception” be reversed. Were it allowed to stand, the EFF points out, the Wiretap Act would become meaningless as it applies to email in a store-and-forward network. The government could have lawful access to any email at all, without bothering with search or wiretap warrants.

This entry was posted on Friday, August 8th, 2008 at 10:21 am and is filed under Surveillance, The role of government—laws and regulations. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.