On occasion, I may have mentioned that judges deal rather poorly with the adaptation of law to new technology.  So it should come as no surprise that it’s happened yet again.

From the Washington Post,

In August 2007, Judge Florence-Marie Cooper, in the Central District of California, ruled that the alleged hacker, Rob Anderson, had not intercepted the e-mails in violation of the 1968 Wiretap Act because they were technically in storage, if only for a few instants, instead of in transmission.

 The implication of this decision is staggering.

The issue boils down to the judicial definition of an intercept in the electronic age, in which packets of data move from server to server, alighting for milliseconds before speeding onward.

“Anderson’s actions did not halt the transmission of the messages to their intended recipients. As such, under well-settled case law, as well as a reading of the statute and the ordinary meaning of the word ‘intercept,’ Anderson’s acquisitions of the e-mails did not violate the Wiretap Act.”

Ah, the Wiretap Act.  What Judge Cooper held is that the interception of emails, when there is a millisecond interceding, is not wiretapping.  What it is, she doesn’t say.  But what “it isn’t” is of huge concern.  Am I overstating the issue?

“It could really gut the wiretapping laws,” said Orin S. Kerr, a George Washington University law professor and expert on surveillance law. “The government could go to your Internet service provider and say, ‘Copy all of your e-mail, but make the copy a millisecond after the email arrives,’ and it would not be a wiretap.”

Now while I may be slightly inclined toward the civil rights end of the law enforcement spectrum, you can’t make that claim against Volokh Conspirator Orin S. Kerr (the “S” stands for “Stand-up”).  If anything, he’s “a little bit country” to my “little bit rock and roll.”  And if Orin says it could “gut the wiretapping laws,” we have good reason to worry.

So, once again we have a court making a decision on whether the ability of technology, in this instance server to server with transitory storage, should renders every email susceptible to interception without a warrant.  An appeal of this decision has been filed in 9th Circuit, where we know at least one judge with a little (maybe too little) computer savvy. 

The ramifications of affirmance are clear, but the question of whether the Circuit will be prepared to try something different, to try not to ram that square peg into that round hole, is another matter.  Bottom line is that old law can’t keep pace with new technology, and we are feeling the impact case by case of law that at one time made sense (usually), but no longer satisfies the rationale in the face of the constantly changing face of modern technology. 

Uh oh.