Intercepting an email before it is received by the recipient constitutes eavesdropping - decided the Tel-Aviv District Court in early February 2007. The brave and innovative judgment by Judge Chaled Kabub will change the ways the Israeli police operates and will somewhat fortify what little privacy is left for Israeli in the online world.

Eavesdropping or a permissible search

During an investigation in the famous Trojan Horse case which shook the country recently, the Israeli police issued search warrants for the email correspondence of private investigators suspected of involvement in the case. The warrants included two types of email: one - email which was saved in the servers of the internet service providers (ISP) (but which had not yet been downloaded to the recipient’s PC) and the second - future emails which would be received in the ISP’s servers in future.

The Court faced the following question - does the interception of emails which are stored in the ISP server constitute illegal eavesdropping of a conversation or is it simply the seizure of an object, which may be carried out as part of a search warrant?

A search is an action which is performed on objects. In order to carry out a search in the objects in a suspect’s place of residence, the police must receive a warrant permitting the search. Such warrants are in effect routinely granted by Magistrate Court judges who deal with hundreds of such warrants every day. Following an amendment of the law, “computer material” may also be the object of a search warrant.
Eavesdropping, on the other hand, is an action which is performed on a “conversation”, when someone who is not a party to the conversation is listening to it or recording it. A conversation was defined in the Law as including “communication between computers”. Eavesdropping is also made possible through a warrant, but this warrant must be issued by the District Court or the Chief Justice of the District Court. The causes and the legal procedure for the issuance of such warrant are much stricter than those required for a search warrant, and include, inter alia, suspicion that a serious crime had been committed.

Therefore, if the interception of an email from the server, as aforesaid, constitutes eavesdropping, it would be more difficult to perform it - and thus stronger protection is granted to the privacy of email users. It should also be noted that evidence acquired in breach of the Prohibition of Eavesdropping Law - may not be submitted in a court proceedings.

In-Transit or not In-Transit

Under the Law, even before the Court handed its decision, the following was known:
1. The interception of an email when in transit between the sender (after he pressed the “Send” button) and the recipient - constitutes eavesdropping on a conversation.

2. Copying an email after the recipient has pressed the “Receive” button and downloaded the email to his computer - constitutes seizure of computer material (defined as an “object”) under a search warrant.
The question which remained open was what happens in the interim - after the sender presses “Send” but before the recipient presses “Receive” - when the email is stored in the Internet Service Provider’s servers. Does this temporary storage change the nature of the material being copied from a “conversation” to an “object”.

US - Email May Not Be Intercepted

The question of the nature of intercepting email temporarily stored in ISP servers was discussed in the US in the Councilman case, which dealt with a lawsuit against an owner of a user books business, who developed a program for the interception of email sent to its customers from Amazon.com.
The question, under the US Electronic Communications Privacy Act (ECPA) was whether the storage in the servers of the ISP is electronic storage which constitutes an exception to the prohibition by law on the interception of electronic communications.

The US Court of Appeals (1st Circuit) held that temporary storage in the servers of the ISP, being an integral part of the progress of the email transmission does not change the nature of the action from electronic communications to electronic storage. Thus - the interception of email at this stage is prohibited by law. The Court stated this in accordance with the intention of the legislator because the law itself did not provide the solution.

Australian Case law

Following much criticism, the Telecommunications (Interception) Amendment Act was enacted in 2006 to prohibit the interception of electronic communications “in transit” except by a warrant which would be given only in grave circumstances.

The law distinguishes between “stored communications” and communications “in transit”, defined as motion in real-time, and includes temporary or incidental storage by an ISP. The law defines the time of motion explicitly as the time between being sent by the sender and the moment it becomes accessible by the recipient. The law differentiates and creates a scale in accordance with specific criteria, between an ordinary search, a search of “stored communications” and the “interception of communications during transit”.

And the Ball is in the Legislator’s Court…

The decisions made by the District Court of Tel-Aviv in February 2007 properly interpret the language of the law in accordance with its purpose - the protection of the right to privacy which enjoys constitutional protection in Israel. It also contributed to the protection of email communications which have become an integral part of our lives and our culture. In the absence of a clear solution in the wording of the law, the Court turned to interpretation. The Court noted that limitations or technological limitations requiring the storage of email in a server en route between the sender and the recipient do not change the nature of the action as a conversation.

If a person travels from Tel-Aviv to Haifa, asks the Court, will a stop-over on the way to put gasoline in the car change the nature of the action as a drive from Tel-Aviv to Haifa? The Court answered - No. This is also the case with regard to the ISP servers. This decision is similar to that of the US Court of Appeals in the Councilman case. In that case even the dissenting opinion did not disagree that the Court’s solution was correct - but held differently as it believed that it is not the Court’s role to provide this solution - but rather that of the legislature.