Last fall, I blogged a few times about a very important e-mail privacy case, United States v. Councilman. The original panel decision in Councilman had gutted the privacy protections of the Wiretap Act, and the First Circuit vacated that opinion in October and held oral argument before the full First Circuit in early December. (Full disclosure: I am counsel of record to a group of amici in the case, including the ACLU, the Center for Democracy and Technology, and the Electronic Frontier Foundation.)

  It's been sixth months since the First Circuit's en banc argument, and no opinion has been issued. In the mean time, Congress has introduced a number of statutory amendments to try to settle the matter. The best was introduced on April 28: Senator Leahy introduced S. 936, the E-Mail Privacy Act of 2005, which is a very short and sweet solution. The Leahy bill adds just a few words to the definition of "intercept" under the Wiretap Act to make its already implicit temporal scope textually explicit. It's an elegant and correct amendment. (More full disclosure: I was consulted on the language before the bill was introduced.)

  I remain optimistic that the Leahy bill won't be necessary; the bill really just reinforces the interpretation that the First Circuit should be reaching anyway. Still, it's good to know that some in Congress are following this issue.