October 7, 2005 6:26 AM PDT
Police blotter: Is 'hacker' innocent?
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What: Bradford Councilman, who is currently fighting federal criminal charges, sues former co-workers, saying they lied to police regarding the interception of e-mail messages.
When: U.S. District Court judge in Massachusetts decides case Sept. 13.
Outcome: Judge dismisses civil suit brought by Councilman.
What happened: Bradford Councilman, formerly vice president of online bookseller Interloc (now part of Alibris), is facing federal criminal charges of unlawful wiretapping.
He is accused of reading e-mail messages meant for his customers, some of whom were provided e-mail accounts at Interloc.com. A three-judge panel of the 1st Circuit Court of Appeals initially dismissed the case, saying no laws were violated by the alleged conduct, but the full appeals court ruled in August that the prosecution could proceed.
For his part, Councilman hired one of Boston's fiercest criminal defense firms and filed a suit against Alibris, Michael Warchut and Peter Krotkov, who were system administrators at the company in 1998.
Councilman's lawsuit claims that his two former colleagues unlawfully obtained access to password-protected files but told him at the time that no laws had been broken.
In his suit, Councilman says they lied in exchange for a convenient plea bargain with prosecutors. He claims, in the words of the court, that "Warchut and Krotkov, in return for favorable treatment by authorities for their own wrongdoing, gave false statements to investigators that implicated the plaintiff. Warchut and Krotkov told police that the plaintiff ordered them to write a computer script to intercept and improperly copy certain e-mails."
Alibris pleaded guilty to charges relating to the illegal interception of e-mail messages and paid a $250,000 fine. Warchut pleaded guilty to one wiretapping conspiracy charge and received a relatively light sentence of two years probation and a fine of $2,100.
U.S. District Judge Michael Posnor said he was unable to delve into the merits of Councilman's allegations because of a 1991 precedent involving a bank teller who falsely implicated a co-worker in a larceny investigation. Even though it was a lie, the teller was not held liable in a civil proceeding.
Excerpt from Posnor's opinion: "The distinction drawn by (the 1991 case) is admittedly somewhat capricious. A person who approaches police, or who seeks issuance of a criminal complaint, with the result that a prosecution begins against an individual based on deliberate lies, may be held liable civilly. On the other hand, a person who is approached by police and, in response to questions, utters the same lies with the result that the investigation takes a new direction and an innocent person is prosecuted, is immune from liability in tort for his false statements. The arbitrariness of the law in this area may be another example of the apothegm of Oliver Wendell Holmes Jr. to the effect that 'the life of the law has not been logic: it has been experience.'"
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