Latest Email Privacy decision

A new US court decision may make your email more accessible than you’d like.

The legal battle about the status of emails continues with a US Federal Court in Cincinnati adding more mud to already unclear waters.

When emails are stored on computers out of your direct control (like an ISP or webmail service) the right of law enforcement to access them is generally unclear.  It seems prior notification might not be necessary to access that information – all the authorities need to do is serve orders on the company storing your data.

We’ve mentioned this before in talking about the ‘cons’ of webmail services.  A court may be unwilling to issue a search warrant that requires entering your home or office to confiscate computers but might not feel so constrained if the warrant allows copying of information from a computer.  Even though the information gathered might be the same, the latter might not appear as intrusive and worrying to a judge.

In the Time magazine article, Prof. Orin Kerr raises an interesting question as to which existing message system is the closest analogy to email, at least for privacy considerations?


Postcard

Anyone in the postal system can see the writing on the postcard.  The extreme of this is done In North Korea where foreign tourists need to write simple, positive statements on postcards home – any negative or unclear remarks on postcards are likely to be ‘lost’ by the Pyongyang authorities who are very sensitive to foreign opinions.


Phone Call

It’s possible to ‘tap’ a phone call or for one of the participants to record it but otherwise a phone conversation is transient with no record of proceedings.


Letter

The contents of a letter are protected from casual reading by means of a sealed envelope.  Of course an envelope is no protection against determined intrusion, but at least the receiver can usually tell if the letter has been tampered with.

 

Doubtless lawyers in the US and elsewhere will have a grand time logging billable hours on the subject and it’s a pity that the legislature in various countries have yet to tackle this issue. 

For us the closest analogy to the ones above is the letter.  Email isn’t like a postcard because emails, while they can be intercepted and read, cannot be as easily examined as simply looking at the back of a piece of cardboard.  A phone call normally has no record of what’s said, unlike emails where it is clearly written down.   A letter, like an email, can be intercepted and read but it takes specific intent and some knowledge to do that.  A fax might be a closer analogy to email than a letter.

A fax might be a closer analogy to email than a letter, simply because of the immediacy and copies retained at both ends.

Why it matters

For most of us the matter is academic, the ‘powers that be’ aren’t likely to be interested in your emails.  If a court wishes to read my emails arranging dinner dates they are most welcome .

However for companies it’s a vital point when considering the choice of ‘in-house’ mail servers or a hosted service.  The latter might be the target of court orders giving access to emails without your knowledge.

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