The recent travails of Paula Broadwell and David Petraeus and their emails has raised a lot of questions, many of which have been answered, at least partially, by citations to the PATRIOT ACT or national security. But what about email privacy for the rest of us? That is in flux. Eventually (soon I hope) the U.S. Supreme court will have to rule on it. Why will it get to the Supreme Court? Because the lower courts do not agree on what level of protection emails deserve. I’m going to try to provide (intermittently I’m sure) some ideas of what’s going on in this area of the law. First up: what’s the source and basis of the issue?
The Fourth Amendment is the key. It says:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
So no “unreasonable” searches can occur without a Warrant (which is assumed to be the guarantee of reasonableness.) In the case of “snail mail” this means that
- You have full Fourth Amendment protection until you mail the package;
- When you drop your mail off (in the mailbox or at the post office) both you and the person you are corresponding with enjoy full Fourth Amendment protection in the contents of the mail during delivery. (Not the identity or the address on the mail. This can sometimes be important for other reasons.)
- When the mail is delivered you lose your Fourth Amendment protection and full Fourth Amendment protection vests solely in the recipient.
Thus, it’s pretty simple: You have it until you mail it; you both have it until it is delivered, and he has it once it gets there. There are exceptions to these but this is the basic approach has governed snail mail privacy.
So how does this apply to email? Good question. The problem is that email is electronic, not physical. So when you send an email to someone copies are littered about the electronic landscape. There are copies on your computer, even after you send it out (check your “sent” folder if you doubt me); copies on the recipient’s folders even after they delete it (check your “delete” or “trash” folders) and copies on the internet service provider you use and the recipient uses (2 more). So that’s at least 4 copies. Are they all protected? Are some of them protected? Are they protected all the time or only some of the time? Are they protected until 1 copy is delivered? Are there laws that protect you? Laws like the Stored Communications Act? Are there state laws like those controlling wiretapping?
These are the questions that are being argued right now. There aren’t many cases but the ones that are out there have huge implications for all of us.