eMail: Private or not?

Just what is private online and what isn't is still being hammered out, and things aren't likely to get any clearer with the conflicting decisions being handed down by the courts.

In an article by Ellen Messmer Computerworld reports that the New Jersey Supreme Court, Appellate Division, ruled that an employee had an expectation of privacy  because she used her personal email account (Yahoo) on a company computer, not the companies email system. The company policy was not clear that email sent from a personal email account using company computers could be captured and used by the company, so the court ruled that there was a reasonable expectation of privacy. I'm sure that by the time your read this the company policy will say something like, "Any correspondence, letter, message, mail or email produced using the company email system and/or company equipment is subject to monitoring and archiving by the company. This includes email sent using third party providers such as Yahoo and Gmail."

In an off the wall decision reported on the Citizen Media Law Project by Andrew Moshirnia the 11th Circuit Court of Appeals ruled that, because of the "Third Party Doctrine" email is not protected by the Fourth Amendment. The Third Party Doctrine is what the government uses to justify the massive wiretapping program the NSA is running. There is a difference, however. The NSA is supposedly only gathering the numbers called, not the content of the calls. This court ruling does not allow just getting the addresses the email is going to or coming from, it allows grabbing the content, as well. That goes way beyond what the NSA is doing.

Worse, not only does it disastrously expand governments ability to spy on our communications, it flies in the face of other decisions by other circuits. Last year the 10th Circuit ruled that even in the workplace employees can have an expectation of privacy in email if certain criteria are met. That ruling makes sense. Using the third party doctrine at all, but especially on email, is crazy. Just because I use a third party to send something doesn't mean I don't expect it to remain private. By that logic  I should be able to grab my neighbors mail out of his mailbox and read it.