[Focus on Privacy] E-Mail Privacy: A short-lived dream?

By Patrick Romero and Michael Santarcangelo

Previously, we explored whether you should be issuing and relying on email disclaimers. This week, we look deeper into email communication to find out if your emails are considered private communications or not.

When speaking with audiences, this is a topic that generates a lot of questions, opinions and sometimes controversy. While everyone is entitled to his or her opinion on the topic, we wanted to take a look at any legal grounding to form a more complete answer.

In the business world, the answer is pretty clear: if you are using the resources of your company, then you have no expectation of privacy. However, what about when you’re using your personal email account, on non-company resources? Do you have a reasonable expectation of privacy for those messages?

The crux of the argument here is one of the fourth amendment. Basically, does the government need to rise to the level of requiring a subpoena in order to require your ISP to provide them a copy of your email records, and in the process, notify you that they have done so.

Think about that for a second.

This has implications for both you personally, and for your organization. What standard is the government required to produce in order to obtain your email records? As a company, what standard is the government required to produce in order to compel you to provide email records – especially if you are an ISP or other email provider.

Based on a landmark ruling this past summer, it appeared the easy answer was “yes.” In the ruling, the United States Court of Appeals for the 6th Circuit held that computer users had a “reasonable expectation of privacy” in their e-mail communications.

No so fast
Yet what was hailed as a victory for privacy advocates was short-lived. Just days ago, on October 9th, 2007, the 6th Circuit granted a rehearing en banc, thereby vacating their earlier decision. This is significant, as an en banc hearing means that instead of the usual three-judge panel decision, all sixteen active judges of the Court will hear this case.

The humble beginning
The decision of the 6th Circuit arose out the government’s investigation into Steven Warshak and his company, Berkeley Premium Nutraceuticals, Inc. Warshak was being investigated due to allegation of mail and wire fraud, money laundering, and related federal offenses. The government obtained a court order directing ISP Yahoo! and NuVox Communications to turn over information pertaining to Warshak’s e-mail account. The order was issued under the Stored Communications Act (SCA) of the Electronic Communications Privacy Act. The SCA requires the government to show that there be “reasonable grounds to believe that the contents of a wire or electronic communication…are relevant and material to an ongoing criminal investigation.”

The government argued that the court order issued under the SCA to the ISPs were not searches but rather compelled disclosures, akin to subpoenas. As a result, the higher burden of probable cause required under the 4th Amendment for a search and seizure was inapplicable. The 6th Circuit disagreed, ruling that “a seizure of e-mails from an ISP, without either a warrant supported by probable cause, notice to the account holder to render the intrusion the functional equivalent of a subpoena, or a showing that the user maintained no expectation of privacy in the e-mail, amounts to a” a 4th Amendment violation.

Why is email different?
Most Internet users believe that they have a reasonable expectation of privacy in their electronic communications and would be shocked if government agents could snoop around their e-mail box. Americans naively assume that e-mails a private and require that the government seek a warrant supported by probable cause to access. Whereas telephone calls due have this judicial standard, e-mails today are not afforded the same level of protection due their technological differences.

The seminal case that enshrined our privacy laws was Katz v. United States
. The Supreme Court held that that the 4th Amendment protects individuals against unreasonable searches and seizes if an individual can justifiable expect that is communications would remain private. Justice Steward wrote that “no less than an individual in a business office, in a friend’s apartment, or in a taxicab, a person in a telephone booth may rely upon the protection of the 4th Amendment.”

The government argued that e-mails are not analogous to telephone communications because they require an intermediary. E-mail works by breaking the contents into individual packets that are routed to the senders ISP. The ISP then stores and copies the e-mail on their server before transmitting it to the recipient. The government’s theory runs along the lines that since the ISP stores and copies the e-mail, the information was voluntarily turned over. As a result, the sender has forfeited any expectation that the ISP would keep the information private and the government should be able to access the content stored by the ISP without a showing of probable cause.

Yet while the government is correct in arguing that e-mail is not akin to the telephone, their argument would eradicate any expectation of privacy for any type of communication which requires an intermediary. The fact that an ISP must store and copy the message does not mean that people expect their messages to be turned over to the government by their ISP.

Fallout of the Decision
So what does this mean for you and me? The Court will hear the case again and determine whether the government’s action were in violation of federal law. While it is always difficult to predict the outcomes of such a case, the issues raised by Warshak should be of concern to all Americans. The decision of the court will be one of the most important decisions involving fundamental Constitutional protections. Due to the prevalent use of new technologies, Americans are not being adequately protected by federal statutes. The need for the courts like the 6th Circuit to establish clearer guidelines to the government and Americans is critically needed to prevent confusion and abuse in the digital age.

In the meantime – remember that email works on a store-and-forward system, and if you are not willing to read what you wrote in the newspaper, you may not want to send it.