Email Privacy: Not As Robust As You Might Hope
October 25, 2014
Big Brother Really Is Watching
Legal scholars and supporters of strong constitutional protections of Americans’ natural, constitutional, and civil rights are worried about the dramatic, sweeping power-grabs and executive overreaches that have occurred under the Presidential administrations of Barack Obama and George W. Bush. The latter’s egregious encroachments on Americans’ rights in the name of increased security and protection from a never-ending threat of Islamic terrorism are have been documented and discussed ad nauseum, but the media has had a difficult time crossing the boundaries of political correctness to criticize President Obama’s terrible policies that have damaged Americans’ liberties and Constitutional protections every bit as much as, if not more than, did the policies of his predecessor.[fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”]
“Adam Winkler, a professor of law at UCLA, told [/fusion_builder_column][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][FactCheck.org, this year], that [Republican Rep. Bob] Goodlatte ‘overreaches a bit,'” claiming “the Supreme Court’s ‘9-0 decision last week was the 13th time the Supreme Court has voted 9-0 that the president has exceeded his constitutional authority.’ … However, he says, ‘it’s clear the Obama administration, like the Bush administration before it, has been aggressively expanding presidential authority. This a worrisome trend — sufficiently so that exaggeration and misrepresentation aren’t necessary.'” Executive overreach has been such a problem during the Obama administration, in fact, in March of 2014, Congress voted for a bill, which, as the Associated Press put it, “would expedite congressional lawsuits against the chief executive for failure to enforce federal laws.” (FactCheck.org)
“The Constitution gives Congress the responsibility to write the laws and the executive to enforce them,” said Rep. Trey Gowdy, R-S.C., the bill’s sponsor. “We don’t pass suggestions. We don’t pass ideas. We pass laws.” House Majority Leader Eric Cantor, R-Va., added: “The president’s dangerous search for expanded powers appears to be endless.” (USNews.com) Not only does the President ignore the laws he doesn’t like or that don’t fit with his Progressive ideology (e.g., DOMA, immigration laws, etc.), he seems to be on a quest for ever greater control over what Americans think, say, and do.
Now, the Obama administration wants Congress to amend the Electronic Communications Privacy Act (ECPA) in a way that would give the Federal Bureau of Investigation (FBI) much broader access to emails and information about Internet users’ web browsing habits and histories. The changes the Obama administration proposes would greatly widen the scope of information communications providers, like Internet Service Providers (ISPs) would be legally required to turn over to the FBI without a warrant.
Currently, the law requires communications providers to turn over to the FBI their customers’ names, addresses, length of service and toll billing records, if the FBI claims the information is needed for a terrorism or intelligence investigation. If the Obama administration’s proposed amendment is enacted, it would require communications providers to release even more information, including the email addresses to which messages have been sent, the dates and times emails were sent and received–possibly even an Internet user’s web browsing history.
“In July 2009, federal law enforcement agents asked a judge for search warrants for e-mails that belonged to certain subscribers to Google’s gmail service. The search warrants were issued, but the judge refused the government’s request that the subscribers not be informed about the search of their e-mail messages.
The government thought the judge made a mistake and so it appealed – it asked another judge to look at the request. Judge Michael W. Mosman agreed with the government and decided that the government didn’t have to tell the subscribers that their e-mail accounts were going to be searched. Rather, all the government had to do was tell the internet service provider (ISP), Google.
Judge Mosman decided that the Fourth Amendment to the US Constitution, which protects us from unreasonable searches and seizures at the hands of the government, doesn’t apply to your privacy in your e-mails. Rather, the law – particularly the Fourth Amendment and the Stored Communications Act, which is part of the Electronic Communications Privacy Act of 1986 (ECPA) – requires agents to get a search warrant and serve it on the true owners of the e-mails, the ISP.” (Lawyers.com)
Email is not like real mail; it is far less private. As the article quoted above points out, “it’s pretty well settled that your employer has the right to monitor, read, and search the e-mails you send and receive from your work computer. That’s because you don’t have a ‘reasonable expectation of privacy’ in the e-mails. The key is ‘reasonable.’ The computer belongs to the employer, so it’s not realistic for an employee to think that anything stored on property not belonging to him is private.” (Lawyers.com)
The article continues:
“The e-mails you send from and receive from your personal computer aren’t much more private. As Judge Mosman points out, the messages are being sent along and stored in computers that belong to someone else – the ISP. So, the messages lose any ‘expectation of privacy’ once they’re sent. In fact, under the ECPA, your ISP can look at your stored messages and messages you’ve sent and received. It can’t tell anyone else about those messages, however, unless there’s a search warrant.” (Lawyers.com)
What Can You Do To Improve Email Privacy?
Email privacy is not something you ever should expect, because you are trusting your ISP with each of your emails–work emails and personal emails–which is a major difference between sending a letter and sending an email. ISPs are, generally speaking, very untrustworthy. So, what can you do?
The best thing you can do to enhance your email privacy is encrypt your email. Encryption just scrambles your messages. Recipients must have a key to decode and read your encrypted messages. With a search warrant, police and government agents can still access encrypted messages. Email is fast. It’s mostly free. That’s good. What isn’t very good about email is security and privacy, or the lack thereof.
There are a few exceptions, of course. If you’re willing to pay for “privacy-oriented email service,” you have some options. One of those options, the Canadian firm Hushmail, offers an ad-free experience with technical support and unlimited email aliases. There is also VaultletMail–a desktop program, not a web app–that allows users to send email messages fully encrypted in transmission to each other. If you’re a Mozilla Thunderbird user, you can also get the free Enigmail extension, but you’ll also have to install and set-up the GNU PrivacyGuard software for your operating system. I don’t know what kind of endorsement this might be, but NSA whistleblower Edward Snowden used (uses?) Lavabit, which consistently denied the U.S. government access to Mr. Snowden’s email, despite intimidation.
You probably are not allowed to encrypt your email at work. (Employers, this should be part of your email / Internet usage policy in your Employee Handbook.) So, make sure you are never sending personal email messages using your work email address. Always use a separate, personal email address for that. Encrypt your email if you’re concerned about the privacy of its contents.
Finally, you may want to provide disclosure warnings in your email. Below you will find a sample of a disclosure warning you can copy and paste into the bottom of your emails. Email disclosure warnings will not really provide you any additional email privacy protection, but these disclosure warnings can have other benefits, which are beyond the scope of this article.
“This email and any files transmitted with it are confidential and intended solely for the use of the individual or entity to whom they are addressed. If you have received this email in error please notify the system manager. This message contains confidential information and is intended only for the individual named. If you are not the named addressee you should not disseminate, distribute or copy this e-mail. Please notify the sender immediately by e-mail if you have received this e-mail by mistake and delete this e-mail from your system. If you are not the intended recipient you are notified that disclosing, copying, distributing or taking any action in reliance on the contents of this information is strictly prohibited.”
You can find more email disclaimers here. Again, email disclaimers will not really provide you any additional email privacy protection. Using them, therefore, may or may not be something you care to do.
If you have email privacy concerns relating to your business, please contact a lawyer with Executive Legal Professionals. Executive Legal Professionals offers no-obligation initial consultations, and we can assist you and your company in addressing the legal problems that arise from breaches of email privacy. You can reach a licensed attorney at (615) 669-6566. We look forward to speaking with you.
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