First Circuit Grants Petition for Rehearing en banc in U.S. v. Councilman

We previously reported here on 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 - an opinion that was strongly and widely criticized. Judge Torruella wrote the majority opinion, joined by Senior Judge Cyr, with Judge Lipez dissenting.

The United States moved for rehearing and rehearing en banc, and we also reported here 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.

It now appears that the First Circuit -as seen here- has granted the petition for rehearing en banc.In so doing, the Court has indicated, in part, as follows:

Although the parties can address other issues in their supplemental submissions, and the en banc court is free to consider all of the issues presented, the court specifically requests that the parties address the following questions:

1. Whether the conduct at issue in this case could have been additionally, or alternatively, prosecuted under the Stored Communications Act?

2. Whether the rule of lenity precludes prosecution in this case?

Oral argument is scheduled for 3:00 p.m. on December 8, 2004 in the en banc courtroom in the John Joseph Moakley United States Courthouse.

The court welcomes timely motions to file amicus briefs concerning any of the issues in this appeal.

This is very good news for anyone concerned with privacy issues. Hat tip to Orin Kerr at The Volohk Conspiracy.