The United States Court of Appeals for the Ninth Circuit has another key case related to e-mail and privacy to decide. The Electronic Frontier Foundation (EFF) filed a friend-of-the-court brief on August 1st regarding a lower court’s decision in the case of Bunnell v. Motion Picture Association of America (MPAA), asking for the lower court’s decision to be reversed. 

In this case, EFF filed a brief with the 9th U.S. Circuit Court of Appeals “arguing that federal wiretapping law protects emails from unauthorized interception while they are temporarily stored on the email servers that transmit them.”

The owners of TorrentSpy brought the case against the MPAA when a contractor for TorrentSpy, allegedly after being paid by the MPAA, hacked into the company email server and configured it to copy and forward all incoming and outgoing email to his personal account.  Ironically, the information was then allegedly used by the MPAA in a lawsuit levied against TorrentSpy for copyright infringement.

As I mentioned in my previous blog on this subject, I am not an attorney and appropriate legal counsel should be consulted before making any decisions based on any information shared in this post. However, coming from the perspective of e-mail as corporate communications tool, the EFF is absolutely right. 

The ramifications of the lower court’s decision, should it hold through the legal process, are significant.  Allowing the secret copying and forwarding of e-mail without a legal penalty or control that the federal wiretapping law provides would make e-mail a massive liability for enterprises. Much of most enterprises’ intellectual property flows through e-mail in various forms – e.g. content, attachments, and calendar items. I understand that enterprises would still have other methods to protect themselves, but losing the protection of e-mail as communication under this law could lead to all kinds of scenarios that make legal departments shudder.   

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