is SMTP a candidate for OPES ?
The attached piece of real world's information seems to be worth
consideration. This is legal, political and US centric. Nevertheless it
means that SMTP (mail transfer) is not seen by many (legally and
technically) as a stream but as fast store and forward and that different
legal rules (and therefore applications/business/demands/offers may be
conceived depending on where is the filter (on the protocol or on the node).
It seems to me this is another contradiction of OPES/ONES with the
"protocol on the wire" and "dumb network/smart host" concepts. I am not an
SMPT pro, but I suppose that the difference is that in HTTP forwards a flow
of datagrams while SMTP stops+store+forwards a group of datagrams building
an entire message. For example, you cannot know the true user's value of a
mail before you got to the attachement or to the final signature.
From the New York Times --
You've Got Mail (and Court Says Others Can Read It)
By SAUL HANSELL
When everything is working right, an e-mail message appears to zip
instantaneously from the sender to the recipient's inbox. But in reality,
most messages make several momentary stops as they are processed by various
computers en route to their destination.
Those short stops may make no difference to the users, but they make an
enormous difference to the privacy that e-mail is accorded under federal law.
Last week a federal appeals court in Boston ruled that federal wiretap laws
do not apply to e-mail messages if they are stored, even for a millisecond,
on the computers of the Internet providers that process them - meaning that
it can be legal for the government or others to read such messages without
a court order.
The ruling was a surprise to many people, because in 1986 Congress
specifically amended the wiretap laws to incorporate new technologies like
e-mail. Some argue that the ruling's implications could affect emerging
applications like Internet-based phone calls and Gmail, Google's new e-mail
service, which shows advertising based on the content of a subscriber's
"The court has eviscerated the protections that Congress established back
in the 1980's," said Marc Rotenberg, the executive director of the
Electronic Privacy Information Center, a civil liberties group.
But other experts argue that the Boston case will have little practical
effect. The outcry, said Stuart Baker, a privacy lawyer with Steptoe &
Johnson in Washington, is "much ado about nothing."
Mr. Baker pointed out that even under the broadest interpretation of the
law, Congress made it easier for prosecutors and lawyers in civil cases to
read other people's e-mail messages than to listen to their phone calls.
The wiretap law - which requires prosecutors to prove their need for a
wiretap and forbids civil litigants from ever using them - applies to
e-mail messages only when they are in transit.
But in a 1986 law, Congress created a second category, called stored
communication, for messages that had been delivered to recipients' inboxes
but not yet read. That law, the Stored Communications Act, grants
significant protection to e-mail messages, but does not go as far as the
wiretap law: it lets prosecutors have access to stored messages with a
search warrant, while imposing stricter requirements on parties in civil suits.
Interestingly, messages that have been read but remain on the Internet
provider's computer system have very little protection. Prosecutors can
typically gain access to an opened e-mail message with a simple subpoena
rather than a search warrant. Similarly, lawyers in civil cases, including
divorces, can subpoena opened e-mail messages.
The case in Boston involved an online bookseller, now called Alibris. In
1998, the company offered e-mail accounts to book dealers and, hoping to
gain market advantage, secretly copied messages they received from
Amazon.com. In 1999, Alibris and one employee pleaded guilty to criminal
But a supervisor, Bradford C. Councilman, fought the charges, saying he did
not know about the scheme. He also moved to have the case dismissed on the
ground that the wiretapping law did not apply. He argued that because the
messages had been on the hard drive of Alibris's computer while they were
being processed for delivery, they counted as stored communication. The
wiretap law bans a company from monitoring the communications of its
customers, except in a few cases. But it does not ban a company from
reading customers' stored communications.
"Congress recognized that any time you store communication, there is an
inherent loss of privacy," said Mr. Councilman's lawyer, Andrew Good of
Good & Cormier in Boston.
In 2003, a federal district court in Boston agreed with Mr. Councilman's
interpretation of the wiretap law and dismissed the case. Last week, the
First Circuit Court of Appeals, in a 2-to-1 decision, affirmed that decision.
Because most major Internet providers have explicit policies against
reading their customers' e-mail messages, the ruling would seem to have
little effect on most people.
But this year Google is testing a service called Gmail, which
electronically scans the content of the e-mail messages its customers
receive and then displays related ads. Privacy groups have argued that the
service is intrusive, and some have claimed it violates wiretap laws. The
Councilman decision, if it stands, could undercut that argument.
Federal prosecutors, who often argue that wiretap restrictions do not apply
in government investigations, were in the somewhat surprising position of
arguing that those same laws should apply to Mr. Councilman's conduct. A
spokesman for the United States attorney's office in Boston said the
department had not decided whether to appeal.
Mr. Baker said that another federal appeals court ruling, in San Francisco,
is already making it hard for prosecutors to retrieve e-mail that has been
read and remains on an Internet provider's system.
In that case, Theofel v. Farey-Jones, a small Internet provider responded
to a subpoena by giving a lawyer copies of 339 e-mail messages received by
two of its customers.
The customers claimed the subpoena was so broad it violated the wiretap and
stored communication laws. A district court agreed the subpoenas were too
broad, but ruled they were within the law. The plaintiffs appealed, and the
Justice Department filed a friend of the court brief arguing that the
Stored Communications Act should not apply.
In February, the appeals court ruled that e-mail stored on the computer
server of an Internet provider is indeed covered by the Stored
Communications Act, even after it has been read. The court noted that the
act refers both to messages before they are delivered and to backup copies
kept by the Internet provider. "An obvious purpose for storing a message on
an I.S.P.'s server after delivery," the court wrote, " is to provide a
second copy of the message in the event that the user needs to download it
again - if, for example, the message is accidentally erased from the user's
Calling e-mail "stored communication" does not necessarily reduce privacy
protections for most e-mail users. While the Councilman ruling would limit
the applicability of wiretap laws to e-mail, it appears to apply to a very
small number of potential cases. The Theofel decision, by contrast, by
defining more e-mail as "stored communications," is restricting access to
e-mail in a wide range of cases in the Ninth Circuit, and could have a far
greater effect on privacy if courts in the rest of the country follow that