Bunnell, et al., v. Motion Picture Association of America

Appellants' Opening Brief

by Electronic Privacy Information Center

EPIC recently submitted an amicus curiae ("friend of the court") brief in Bunnell v. MPAA. The case implicates email privacy rights, and is presently pending before a federal appeals court in San Francisco. Bunnell concerns allegations that the Motion Picture Association of America violated the federal Wiretap Act while snooping on TorrentSpy, a peer-to-peer search engine. Justin Bunnell and other TorrentSpy employees claim that the movie-industry trade association paid a former TorrentSpy worker to tap the company's email server. The MPAA allegedly paid $15,000 for information derived from private emails sent by TorrentSpy executives.

Bunnell sued the MPAA for the covert email surveillance. The federal Wiretap Act bars the unauthorized interception of electronic communications. The Act sets forth penalties for intercepting communications while messages are "in transit," but does not govern access to historic, archived data. A California trial court held that the MPAA did not violate the Wiretap Act, reasoning that the emails were secretly swiped while they were in milliseconds-long "storage" on TorrentSpy's email server, not while they were "in transit." Similar reasoning has been rejected by other courts, and Bunnell appealed to the Ninth Circuit Court of Appeals.

On August 1, 2008, EPIC filed a "friend of the court" brief supporting Bunnell. EPIC argued that the Wiretap Act's language and legislative history reflect Congress' intent to prohibit exactly the sort of unauthorized email interceptions implicated by Bunnell.

The Electronic Frontier Foundation and the Center for Internet and Society also filed briefs in support of Bunnell.

This is Bunnell et al.'s Opening Brief on Appeal.