Reversal of Internet Ruling Is Sought

A federal court decision granting stronger privacy protection to Web sites and e-mails has prosecutors worried about their ability to fight Internet-related crimes.

The U.S. 9th Circuit Court of Appeals ruled in January that unauthorized access to stored electronic communications could violate the federal Wiretap Act.

The Justice Department, in court papers, warns that the ruling could be “substantially impairing the ability of federal and state investigators and prosecutors to pursue and prosecute Internet crime of every kind.”

The Los Angeles County district attorney’s office, in a brief representing California prosecutors, said the decision “has placed investigation on the Internet in a state of legal turmoil.”

Federal and local authorities said they are relying more and more on computers and the Internet to gather evidence for cases ranging from hunting down pedophiles to fighting consumer fraud.

Those authorities are hoping that the ruling, which applies to restricted-access Web sites and e-mails, is overturned. The appeals court is expected to announce within a couple of months whether it will reconsider.

The issue grew out of a dispute between Playa Del Rey pilot Robert C. Konop and his employer, Hawaiian Airlines.

Konop sued Hawaiian after a company vice president used other employees’ names to log onto Konop’s private Web site. The site contained bulletins critical of the airline that were not supposed to be seen by upper management.

Konop, who represented himself, argued in court that the vice president violated the Wiretap Act.

A U.S. District Court threw out Konop’s claims, but a 9th Circuit panel reversed a key part of the district court’s decision. The panel held that the Wiretap Act, which generally prohibits eavesdropping on communications “in transit,” such as phone conversations, and certain stored communications, such as voice mail, also ought to cover other stored communications, such as messages posted on restricted-access Web sites and e-mails.

“It makes no more sense that a private message expressed in a digitized voice recording stored in a voice mailbox should be protected from interception, but the same words expressed in an e-mail stored in an electronic post office pending delivery should not,” Senior Circuit Judge Robert Boochever wrote.

“It would be equally senseless to hold that Konop’s messages to his fellow pilots would have been protected from interception had he recorded them and delivered them through a secure voice bulletin board accessible by telephone, but not when he set them down in electronic text and delivered them through a secure Web server,” Boochever wrote.

Privacy rights advocates said the appeals court ruling makes sense. More people than ever are communicating over the Internet, and the court is recognizing “privacy rights of new forms of communications,” said David Sobel, general counsel for the Electronic Privacy Information Center in Washington, D.C.

The ruling “keeps privacy considerations in line with advancements in technology,” said Lee Tien, senior counsel for the San Francisco-based Electronic Frontier Foundation, which submitted a brief supporting Konop. “The idea that privacy of communications depends on whether it’s stored or in transit just doesn’t make sense [anymore].”

But others fear that the ruling could make it more difficult, if not impossible, to investigate and prosecute Internet crimes.

“The implication of this decision is that law enforcement would be fighting cyber crime with one arm tied behind its back,” said Marc Zwillinger, the Washington, D.C.-based partner in charge of the cyberspace law and information security group of the Kirkland & Ellis law firm.

Until the ruling, cyberspace crime investigators believed they needed only a search warrant to seek information on a computer hard drive or tap into a restricted-access Web site. But now, a wiretap order may be needed, those in law enforcement said. And they said obtaining one is much harder than getting a search warrant, which typically requires little paperwork and permission from a judge.

Officials said a wiretap order sought by the FBI, for example, requires clearance from the highest level of the Justice Department and voluminous paperwork that might require a week to prepare.

In California, wiretap warrants can be obtained only for limited types of crimes, such as murder, kidnapping and large-scale drug trafficking. State law does not authorize wiretaps for most crimes, including most Internet-related offenses such as child pornography, identity theft, online scams or cyberspace stalking.

Those in high-tech law enforcement also fear the penalties for violation of the Wiretap Act, a felony punishable by up to five years in prison. Offenders also can be held personally liable for damages.

In Sacramento County, an investigation into a suspected Internet child pornography club was suspended after the 9th Circuit ruling.

“It literally stopped the investigation in its tracks,” said Lt. Mike Tsuchida of the Sacramento County Sheriff’s Department. “We local cops can’t get wiretap orders for these types of crimes.”

In Van Nuys last year, a man was sentenced to 60 days in jail and five years’ probation after investigators, aided by a search warrant for his computer, caught him trying to extort money from a woman by threatening to post racy photos of her on the Internet.

“If the Konop decision were upheld, the process by which police would need to investigate a case of this type would be grossly impaired” because they are likely to need a wiretap order, said Loren Naiman, head deputy of the high-tech crime unit at the district attorney’s office.

Konop said police and prosecutors are mistaken about the law and are overreacting.

“The only Internet crime I see are them grabbing my communications,” Konop said. “What they want to do is take our e-mails . . . and go on private Web sites. That’s pretty scary. They should have something better to do with their time.”