Your Emails Have Less Privacy Protection Than Your Letters

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The Electronic Communications Privacy Act of 1986 provides some measure of protection, but it still has gaping loopholes

EmailPrivacyReuters-Post.jpg

For years, it's seemed almost impossible that Americans didn't have more intense privacy concerns about their online information. One big reason, I think, is that people use simple common sense reasoning about the privacy protections that will be afforded to their electronic lives. By analogy, they figure that the same rules will apply to email that apply to letters, for example, but as an essay by Yale Law School's Adam Cohen highlights, your email is far less protected than the letters you send or the phone calls you make.

These strong constitutional protections for private communications fall apart, however, for e-mail. The courts have not definitively decided whether the Fourth Amendment requires the government to get a warrant before obtaining an individual's e-mails from their email provider and then reading them. Government lawyers like to emphasize the ways in which e-mail could be seen as deserving of less privacy; some of the most popular e-mail programs, for example, such as Gmail or Hotmail, are held by a third party, and the law often gives less protection to information that we let third parties keep for us. Last December, the Cincinnati-based United States Court of Appeals for the 6th Circuit ruled that a warrant is required to search stored e-mail -- but that decision only applies in four Midwestern states.

The Electronic Communications Privacy Act, passed in 1986, provides some measure of protection but it has gaping loopholes. For example, the government can read any email that *you've read* or that's more than 180 days old without a warrant.

Time notes that Senator Patrick Leahy of Vermont is trying to introduce legislation that would force the government to seek a warrant anytime it wants to read your email. Cohen notes this would be a major improvement on the current legal situation, and I add that it would more closely match the level of privacy that people expect based on their experiences in the offline world.

Image: Reuters.

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Alexis C. Madrigal

Alexis Madrigal is a senior editor at The Atlantic, where he oversees the Technology Channel. He's the author of Powering the Dream: The History and Promise of Green Technology. More

The New York Observer calls Madrigal "for all intents and purposes, the perfect modern reporter." He co-founded Longshot magazine, a high-speed media experiment that garnered attention from The New York Times, The Wall Street Journal, and the BBC. While at Wired.com, he built Wired Science into one of the most popular blogs in the world. The site was nominated for best magazine blog by the MPA and best science Web site in the 2009 Webby Awards. He also co-founded Haiti ReWired, a groundbreaking community dedicated to the discussion of technology, infrastructure, and the future of Haiti.

He's spoken at Stanford, CalTech, Berkeley, SXSW, E3, and the National Renewable Energy Laboratory, and his writing was anthologized in Best Technology Writing 2010 (Yale University Press).

Madrigal is a visiting scholar at the University of California at Berkeley's Office for the History of Science and Technology. Born in Mexico City, he grew up in the exurbs north of Portland, Oregon, and now lives in Oakland.

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