Group Decries "Attempts to Circumvent Electronic Privacy Law"

The Electronic Frontier Foundation (EFF) has filed friend-of-the-court briefs in two key electronic privacy cases that the group says threaten to expand the government's spying authority.

In the first case, Bunnell v. Motion Picture Association of America (MPAA), EFF filed a brief with the 9th U.S. Circuit Court of Appeals arguing that federal wiretapping law protects e-mails from unauthorized interception while they are temporarily stored on the e-mail servers that transmit them. This case was brought against the MPAA by the owners and operators of TorrentSpy, a search engine that let Internet users locate files on the BitTorrent peer-to-peer network. After a business dispute, one of TorrentSpy's independent contractors hacked into the company e-mail server and configured it to copy and forward all incoming and outgoing e-mail to his personal account and then sold the information to the MPAA. However, the federal district court ruled that because the e-mails were stored on the mail server for several milliseconds during transmission, they were not technically "intercepted" under the federal Wiretap Act. In its amicus brief filed Friday, EFF argues that this ruling is incorrect as a matter of law and must be overturned in order to prevent the government from engaging in similar surveillance without a court order.

"The district court's decision, if upheld, would have dangerous repercussions far beyond this single case," said EFF Senior Staff Attorney Kevin Bankston. "That court opinion -- holding that the secret and unauthorized copying and forwarding of e-mails while they pass through an e-mail server is not an illegal interception of those e-mails -- threatens to wholly eviscerate federal privacy protections against Internet wiretapping and to authorize the government to conduct similar e-mail surveillance without getting a wiretapping order from a judge."

The second case concerns a request by the Department of Justice (DOJ) to a federal magistrate judge in Pennsylvania for authorization to obtain cell phone location tracking information from a mobile phone provider without probable cause. The magistrate instead demanded that the DOJ obtain a search warrant based on probable cause, and the DOJ appealed that decision to the federal district court in the Western District of Pennsylvania. In an amicus brief filed Thursday, EFF urged the district court to uphold the magistrate's ruling and protect cell phone users' location privacy.

"Location information collected by cell phone companies can provide an extraordinarily invasive glimpse into the private lives of cell phone users. Courts have the right under statute -- and the duty under the Fourth Amendment -- to demand that the government obtain a search warrant based on probable cause before seizing such sensitive information," said Bankston. "This is only the latest of many cases where EFF has been invited to brief judges considering secret surveillance requests that aren't supported by probable cause. We hope this court recognizes the serious Fourth Amendment questions that are raised by warrantless access to cell phone location information and affirms the magistrate's denial of the government's surveillance request."

The American Civil Liberties Union (ACLU), the ACLU-Foundation of Pennsylvania, and the Center for Democracy and Technology (CDT) also joined EFF's brief.