Saturday, September 04, 2004

Amici Brief filed in U.S. v. Councilman

Orin Kerr at The Volokh Conspiracy reports on the filing of an amici brief in support of the United States' petition for rehearing and for rehearing en banc in the First Circuit's 2-1 opinion in United States v. Councilman, slip op. No. 03-1383 (1st Cir. June 29, 2004) on internet privacy. Judge Torruella wrote the majority opinion, joined by Senior Judge Cyr, with Judge Lipez dissenting.

I previously posted on the importance of this case here, quoting from Professor Kerr's views on the case. His comments , as we quoted, were as follows:
Why is this decision a big deal? It's a big deal because the line between the Wiretap Act and the Stored Communications Act doesn't just regulate ISPs. It regulates everybody, including federal and state criminal investigators. The Justice Department and Congressional staffers have interpreted the Wiretap Act quite broadly and the Stored Communications Act quite narrowly, and based both existing practice and recent legislative amendments on that understanding. When I was at DOJ advising agents on this sort of thing, the informal yardstick was that when a law enforcement agent planned a series of accesses to a file or account, the repeated series of accesses triggered the Wiretap Act rather than the Stored Communications Act. So in a pre-Councilman world, an FBI agent couldn't make an end-run around the Wiretap Act by lining up a bunch of warrants and executing them once every ten minutes. This approach remained true to the Supreme Court's decision in Berger [v. New York, 388 U.S. 41 (1967)] and also ensured that the strong privacy protections of the Wiretap Act were not gutted by end-runs around the statute.
There are rumors afoot that Congress may step in and fix this problem soon. Fortunately, the politics are a win-win: both DOJ and civil liberties groups want the prior understanding restored. There is even proposed statutory language floating about that would do the trick quite nicely. Let's hope that Congress acts sooner rather than later. Stay tuned.
I will try to obtain a copy of the petition for rehearing and for rehearing en banc. Stay tuned to this case, for I also agree that it is an important one in which the panel's majority got it wrong.