[IP] more on E-mail intercept ruling - good grief!!

[Peter Swire]

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 at v2.listbox.com [mailto:owner-ip at 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!!




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