[P.S: This Article is meant for Academic
Discussion. This need not be interpreted as an opposition to Privacy rights of
individuals. ..Naavi]
The judgment delivered by the full First
Circuit Court of Appeals on August 11th 2005 in the case of Bradford
Councilman overturning the earlier decision of the District Court of
Massachusettes has raised some interesting points of discussion.
The Case arose due to an allegation that
the defendant Councilman was an e-mail service provider and he was secretly
monitoring the content of the e-mails passing through his system and therefore
violated the Wiretap Act.
The defendant was a seller of rare and used books who also offered email
service to customers. Councilman had secretly configured this system to
copy all emails of the customer coming from Amazon.com, his competitor,
and send it to him.
The defense argument was that the
information was stored temporarily in the system under the control of the
defendant and hence monitoring the content of the stored message did not
attract the penal provisions of the Wiretap Act.
The lower court had agreed with the
argument of the defendant and the appeal court has now turned down this
argument. The appeal court's new decision makes clear that even though emails
are stored in computer memory during transmission, it is still criminal to
intercept those messages without the user's permission or a court-issued
wiretap order. Wiretap Act doesn't apply merely to communications that
are tapped from the wire, but also covers communications that are in
"transient electronic storage that is intrinsic to the communication process,"
according to the court.
The Implications:
The judgement throws up two points for
discussion. One is the nature of information on the RAM and the other is the
information in the POP Box of an e-mail customer. These discussions are
relevant in India from the point of view of debating the ISP's liabilities.
In the instant case the incoming message
was received by the mail server of Councilman and deposited in the individual
mail boxes of the customers. During the time after receipt by the system and
its delivery to the POP box of the customer, the message was analysed and if
it came from a particular address (In this case, amazon.com domain) it was
copied and delivered to Councilman.
During the above process, the message was
temporarily held in a process space though the time of hold may be in
milliseconds.
In the time frame in which Computers operate, a time when the
data packets just pass through could be in microseconds. For the purpose of analysing the mail as in the instant case, the data packets need to be
assembled and read, passed through a decision rule and further action
triggered. All these take thousands of more time than when the data merely passes
through.
Thus even though "Milli Seconds" appear to be infinitesimally small
from meta society perspective, it is not so in the "Cyber Society
Perspective". The time for which the information was stored in the
Councilman's computers was therefore thousands of time more than when they had
to merely pass through. Hence it is nothing different from "Storage". If we
take the "Cache Memory" in many applications where a certain disk space has
been assigned, then also the information gets automatically cleared as soon as
fresh information comes in. Hence the storage we are discussing here is also
the kind of storage we come across many other applications. If we define that
RAM storage is not a storage then we need to agree that other "Cache Storage"
is also not storage.
It is important to note that under
ITA-2000 legal recognition of the Electronic Documents is tagged with the
ability to "access the document for subsequent reference". If RAM information
is accessible for subsequent reference it qualifies as a legally recognized
electronic document and perhaps as evidence for various crimes. If however RAM
information is considered as "Information that is not accessible for
subsequent reference", then it may not qualify for any evidence. Also
under Section 79 of ITA-2000, the ISP liability may differ in the case of
transient information and stored information. Hence the judgement has
relevance for Section 4 and Section 79 of ITA-2000.
Hence the
impact of Councilman decision on the evidentiary value of RAM information has
to be taken note of. Here the defendant had demonstrated that the disputed
messages on the RAM were accessible for subsequent reference within the
computer time framework in the original form and in manual time frame in the
copy form.
If we now hold that RAM storage is not a
"Storage", then we are arguing that unless information is available for human
access, it cannot be considered as legally valid document.
One more issue that the case threw up was
whether the POP box space belongs to the customer or the service provider. It
appears that the judgment implies that the POP box does not belong to the
service provider. However, if the service provider has access to the mail box
even to the extent of deletion of the mails, we cannot say that the mails in
the mail box have been irretrievably delivered to the customer. In which case,
the time the mail was in hold in the POP box actually becomes storage under
the service providers' control.
Under the ITA-2000, the time of receipt
and despatch of an electronic message is dependent on its receipt and exit
from a system under the control of the user. Hence the interpretation of
whether the POP space belongs to the user or to the ISP has relevance to
electronic contract formation.
I invite comments on these two aspects of
interpretation thrown up by the above judgment. For clarity, I give below the
points for comment.
a) Does Storage of information in RAM or
Cache memory constitute "Storage" with its corresponding consequences on the
Section 4 and Section 79 of ITA-2000
b) Does the message in the POP box of a
customer deemed to be in the custody of the user or in the joint custody of
the user and ISP?
Naavi
August 21, 2005
(Comments
welcome)
[P.S: This Article is meant for Academic
Discussion. This need not be interpreted as an opposition to Privacy rights of
individuals. ..Naavi]
Related
Articles:
Councilman case
Judgment from Appeal Court
PDF Version
