Email and the Fourth Amendment

Almost nothing on the internet is as private as people often believe it to be. Many people imagine their email conversations as similar to spoken conversations, where the information stays between the participants of the conversation unless one or both should choose to disclose it. However, in actuality, an email conversation, like almost anything else that a user transmits via their Internet Service Provider (ISP) is nowhere near as private as a conversation that takes place in person.

            Data transmitted by a particular ISP (such as Verizon or Comcast) is stored on the ISP’s servers. Although the privacy agreements of the ISP commonly state that the employees of the ISP will not view personal content, the information transmitted is usually stored, scanned, and can be voluntarily disclosed to the police or subpoenaed in a case against the internet user. Sometimes the information is kept for months or even years, meaning that any conversations that take place via the internet may include three viewers- the sender, the receiver, and the ISP. The same is true for email servers, such as Yahoo or Gmail, which also store a person’s email on their servers, meaning that the email service also has the power to “eavesdrop” on the conversation. Finally, school, office and home networks can all be set up to store all of the information transmitted through the network, which creates a fifth potential eavesdropper for any online communications.

            Most troubling of all, because the advent of communication and networking technology is so new, courts have yet to clearly define whether a person’s email, chat and search history is protected by the Fourth Amendment at all. Some courts have found that there is a Fourth Amendment protection for “content based” communications, such as personal email, but other courts have found that there is not. Ultimately, “[T]he extent to which the Fourth Amendment provides protection for the contents of electronic communications in the Internet age is an open question.” Quon v.  Arch Wireless Operating Co., 529 F.3d 892, 904 (9th Cir.  2008).

    Until this issue is fully resolved in the law, it is important to remember that any data transmitted online could potentially be saved and stored by one or more third parties. If you have any questions or concerns about this, please feel free to contact our office for a free initial consultation.

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