In a ruling from last week, USA v Councilman, about which I have not heard a ripple (though, to be fair, I do not get out much) the US Court of Appeal determined that an ISP scanning email for commercial content is A-OK. In the case, a book dealer that offered email addresses to others in the trade, scanned the content of the communications of these others to find orders going to Amazon. The practice was challenged as a wiretap. The Court held:

The Wiretap Act's purpose was, and continues to be, to protect the privacy of communications. We believe that the language of the statute makes clear that Congress meant to give lesser protection to electronic communications than wire and oral communications. Moreover, at this juncture, much of the protection may have been eviscerated by the realities of modern technology. We observe, as most courts have, that the language may be out of step with the technological realities of computer crimes. However, it is not the province of this court to graft meaning onto the statute where Congress has spoken plainly. (7) We therefore affirm the district court's dismissal of Count One of the Indictment on the premise that no intercept occurred in this case, and therefore, the Wiretap Act could not be violated.

The Court found as it did despite the following argument being made:

The government argues, and the dissent is persuaded by this argument, that the legislative history of the statute demonstrates that if an electronic communication is obtained while it is simultaneously in transmission and in storage, then an intercept occurs. Notwithstanding the fact that we find the language of the statute unambiguous, exploring this contention merely confirms our position as to the meaning of the statute. The government points to dicta in Pharmatrak as supporting the conclusion that electronic communications are protected when they are in storage, because by their nature, they exist in storage and transit at the same time.

Seems like a reasonable argument to me but this ruling is in line with the logic of Cory Doctorow's recent essay on digital rights mangement as it is based in large part that as the law lags behind technology's advances, it must simply leave the playing field and all rights to the whim of the technologists.

Laws of general application should never express a technological standard and should not be taken as doing so.  Technology always changes but our legal interests do not, or at least do not in the same way.  Perhaps the Court is right in the strict sense that it is saying that the particular law in question was too technologically specific. All should be happy as long as they accept that email now conveys no privacy interest and is available to all who may intercept. Do you know everyone who handles your emails along the way?