Copysense and Sensibility: How the Wiretap Act Forbids Universities from Using P2P Monitoring Tools

Abstract

While the Wiretap Act forbids interception of the contents of communications of traditional telephone calls, it has been less clear to what extent it forbids interception of the contents of Internet communications. This paper argues that the Fourth Amendment privacy interests protected by the Wiretap Act should and do protect Internet communications the same way as the Wiretap Act has been construed to cover traditional telephonic communications, and, as such, that usage of devices designed to intercept and monitor Internet communications can be illegal. More specifically, this paper addresses how the devices increasingly employed by universities to intercept and identify potentially copyrighted materials being transmitted to the Internet via their networks by university users run afoul of the Wiretap Act's interdiction against such monitoring.

Keywords: P2P, universities, college, Wiretap Act, TCP/IP, Internet, ECPA, Fourth Amendment, file sharing, intercept, monitor, communications