Dave: On VOIP interception, there is a statutory and a constitutional issue. The statutory issue is whether VOIP is a "wire" communication (like a phone call) or an "electronic" communication (like an e-mail or web communication). The Councilman court said that "wire" communications are considered "intercepted" even if they are in temporary storage. The key holding of the case was that "electronic" communications are not "intercepted" if the wiretap takes place while the communication is in temporary storage. "Wire communication" is defined as "any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable or other like connection between the point of origin and the point of reception." I do not know whether a court has ruled on whether VOIP counts as a "wire communication." Quick research just now suggests we don't have a case on that yet. I can see arguments either way, based in part on whether a packet-switched communication counts as "aural." Under Councilman, if VOIP is an "electronic communication", then the provider therefore could intercept the VOIP calls for the provider's own use without it counting as an "interception." Providers already can intercept communications with user consent or to protect the system, but this would be blanket permission to intercept communications. The constitutional question is whether users have a "reasonable expectation of privacy" in VOIP phone calls. Since the 1960's, the Supreme Court has found a 4th Amendment protection for voice phone calls. Meanwhile, it has found no constitutional protection for stored records. In an article coming out shortly from the Michigan Law Review, I show why VOIP calls quite possibly will be found NOT to have constitutional protection under the 4th Amendment. It would then be up to Congress to fix this, or else have the Supreme Court change its doctrine to provide more protections against future wiretaps. Article at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=490623 . Peter Prof. Peter P. Swire Moritz College of Law, Ohio State University John Glenn Scholar in Public Policy Research (240) 994-4142, www.peterswire.net -----Original Message----- From: owner-ip@v2.listbox.com [mailto:owner-ip@v2.listbox.com] On Behalf Of David Farber Sent: Thursday, July 01, 2004 12:12 PM To: Ip Subject: [IP] more on E-mail intercept ruling - good grief!! Begin forwarded message: