• by Wendy Davis  @wendyndavis, August 8, 2008

It sounds like a B-thriller. When Hollywood decided to target the BitTorrent search site TorrentSpy, the studios hired former TorrentSpy employee Rob Anderson to provide them with information.

Anderson hacked into TorrentSpy's system and then forwarded the studios 34 pages worth of e-mails, including messages about the company's finances. Those e-mails now are at the heart of a case that could determine how much privacy people have in their online activity.

In the case, TorrentSpy sued the Motion Picture Association of America for wiretapping, claiming that it illegally obtained the company's e-mails. Federal district court judge Florence-Marie Cooper threw out the suit on the ground that the e-mails were not intercepted under the federal Wiretap Act. She found that Anderson did not "stop or seize" any e-mails, which all went to their intended destinations. She also ruled that they were not intercepted in transmission because they were stored on TorrentSpy's own servers--although only for fractions of a second.

Now, the digital rights group Electronic Frontier Foundation has filed a friend-of-the-court brief asking the 9th Circuit to reverse Cooper. "The district court's holding is contrary to the plain language of the statute," the group wrote. "By setting a precedent for the government and others to engage in similar conduct without regard to the Wiretap Act's prohibitions, dangerously undermines the statutory and constitutional privacy rights of every Internet user."

Kevin Bankston, an attorney with the Electronic Frontier Foundation, added that Cooper's ruling leaves people's e-mails less protected than the phone conversations. "It would make the Wiretap Act obsolete when it comes to Internet communications," he said.

Another federal law, the Stored Communications Act, still makes it unlawful to hack into e-mail, but that law's provisions are not as privacy-friendly as the Wiretap Act's. For instance, the Stored Communications Act allows service providers to authorize access to users' messages.

The Motion Picture Association of America said it believes Cooper's decision was correct. The organization also said it originally believed the e-mails had been obtained legally. "It was only through discovery in this case that we learned that he had engaged in conduct that violated the law. We do not condone it, we repudiate it," the group said in a statement.

TorrentSpy filed its wiretap case after the movie studios filed their own copyright infringement lawsuit, alleging that TorrentSpy was offering users access to thousands of copyrighted television programs and movies like "Batman Begins," "The Italian Job" and "The Simpsons."

Cooper ruled in the Motion Picture Association of America's favor on the copyright case as well. In that case, she found that TorrentSpy deliberately destroyed evidence including users' IP addresses and forum posts, and as a sanction, ruled against the company. TorrentSpy took the position that its sweeping privacy policy required the company to protect users' identities. Ultimately, she ordered TorrentSpy to pay $115 million. TorrentSpy shut down in the U.S. last year.

At least one appellate court, the 1st Circuit Court of Appeals, has previously decided that the Wiretap Act applies to e-mail even though messages are intercepted while technically in storage. In that case, the court held that Congress intended for wiretap protections to apply to include e-mails. "The term 'electronic communication' includes transient electronic storage that is intrinsic to the communication process, and ... interception of an e-mail message in such storage is an offense under the Wiretap Act," the court wrote in that case.