I rent two dedicated servers from a hosting provider, one on a yearly basisis, the other monthly. The Terms of Service and AUP state clearly that they are not to access the server or data contained within without a work authorization or valid legal request.
They also provide an internet connection to said servers, as well as several public IP addresses for use on these servers.
Through testing and diagnosis, I have determined (and their support team has confirmed) the existance of a device that intercepts outgoing SMTP traffic from said servers. This device acts as a man in the middle device, and rewrites said traffic to strip out the STARTTLS ESMTP capability (i.e. disables encryption), meaning that all ougoing email communications are either unencrypted, or fail (if encryption is set to be required).
Their reasoning for the presence of such a device is to prevent abuse of their network.
18 USC § 2510 defines a wiretap device as such:
5. "electronic, mechanical, or other device" means any device or apparatus which can be used to intercept a wire, oral, or electronic communication other than—
(a) any telephone or telegraph instrument, equipment or facility, or any component thereof,
(i) furnished to the subscriber or user by a provider of wire or electronic communication service in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business or furnished by such subscriber or user for connection to the facilities of such service and used in the ordinary course of its business; or
(ii) being used by a provider of wire or electronic communication service in the ordinary course of its business, or by an investigative or law enforcement officer in the ordinary course of his duties;
This leads to two questions:
- Does the usage of this device fall under the classification of "ordinary course of its business," given that it is not providing email service, but internet service?
- If not, does such action constitute illegal wiretap, or is there some other law or regulation that makes such action legal?