A federal appeals court in California is reviewing a lower court's definition of "interception" in the digital age.
The case, Bunnell v. Motion Picture Association of America, involves a hacker who in 2005 broke into a file-sharing company's server and obtained copies of company e-mails as they were being transmitted. He then e-mailed 34 pages of the documents to an MPAA executive, who paid the hacker $15,000 for the job, according to court documents.
The issue boils down to the judicial definition of an intercept in the electronic age, in which packets of data move from server to server, alighting for milliseconds before speeding onward. The ruling applies only to the 9th District, which includes California and other Western states, but could influence other courts around the country.
In August 2007, Judge Florence-Marie Cooper, in the Central District of California, ruled that the alleged hacker, Rob Anderson, had not intercepted the e-mails in violation of the 1968 Wiretap Act because they were technically in storage, if only for a few instants, instead of in transmission.
"It could really gut the wiretapping laws," said Orin S. Kerr, a George Washington University law professor and expert on surveillance law. "The government could go to your Internet service provider and say, 'Copy all of your e-mail, but make the copy a millisecond after the email arrives,' and it would not be a wiretap."
This case is a perfect example of how the 4th amendment has been twisted in the context of computer networks by those who have an interest in being able to spy without probable cause.
