On Thursday, July 31, 2008, the Center for Internet and Society at Stanford Law School sought leave to file a "friend of the court" brief before the U.S. Court of Appeals for the Ninth Circuit on behalf of two of the original designers of the protocols that govern the transfer of information across the Internet, M.I.T. computer scientists Dr. David Clark and Dr. David Reed.
Bunnell v. Motion Picture Association of America presents the Ninth Circuit with the question of whether hacking into an email server and illicitly configuring it to copy and forward all incoming and outgoing email to a personal account constitutes an illegal "interception" under the Wiretap Act. The District Court held that it does not, in part because the court found that each email was in storage at the time of acquisition and, therefore, the acquisition was not "contemporaneous with transmission" as required under Ninth Circuit precedent.
The proffered amicus brief explains that email necessarily enters multiple stages of transient storage as it travels across the Internet; accordingly, the acquisition of email while in transient storage remains contemporaneous with its transmission. Any other result, the brief argues, would entirely remove from the protection of the Wiretap Act the preferred way for low-tech snoops to acquire the contents of email en route to recipients, as well as implicate the many other modes of communication that make use of transient storage.