Professional Documents
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Computer Email and Privacy
Computer Email and Privacy
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by
Ruel T. Hernandez
INTRODUCTION
Two years ago, legislation was introduced into Congress that sought to
provide federal statutory guidelines for privacy protection of computer
communications, such as electronic mail found on commercial computer systems
and on remote computer systems, commonly known as bulletin board systems
(BBS). Old federal wiretap law only gave protection to normal audio
telephonic communications. There was no contemplation of computers or their
operators using telephone lines to communicate. The old federal wiretap law
regulated police interceptions of communications while they are being
transmitted on a telephone line. Before the Electronic Communications
Privacy Act of 1976, the law did not provide guidelines for protecting the
transmitted message once it was stored within a computer system.
QUESTIONS
(1) Whether electronic mail and other intended private material stored
within an electronic computer communication system have Fourth Amendment
privacy protection?
(2) Should private electronic mail and other such material be accorded
the protection guidelines as with telephone communication and the U.S. Mail?
PROBLEM
Law enforcement seeks criminal evidence stored as E-Mail on either a
local, user-supported BBS, or on a commercial computer service, such as
CompuServe, GEnie or The Source. (Note, this situation is equally
applicable to personal, private data stored on a remote system for later
retrieval, as with CompuServe's online disk storage capabilities.)
Brock Meeks of Profiles magazine noted that as of August, 1986, "no ...
protection exist[ed] for electronic communications. Any law enforcement
agency can, for example, confiscate a local BBS and examine all the message
traffic," including and private files and E-Mail. (Ibid.)
In the next section, case law will be examined and statutory law prior
to the Electronic Communications Privacy Act of 1986 (ECPA) will be noted.
Seemingly applicable statutes, as they stood, provided no guidelines for
privacy protection of electronic computer communication systems, such as
CompuServe, GEnie, and local, user-operated BBSs.
CASE LAW
Of the available cases, Scott noted those that primarily dealt with
financial information found in bank and consumer credit organization
computers. In U.S. v. Davey, 426 F.2d 842, 845 (2 Cir. 1970), the
government had the right to require the production of relevant information
wherever it may be lodged and regardless of the form in which it is kept and
the manner in which it may be retrieved, so long as it pays the reasonable
costs of retrieval. In a California case, Burrows v. Superior Court, 13
Cal. 3d 238, 243, 118 Cal. Rptr. 166, 169 (1974), a depositor was found to
have a reasonable expectation that a bank would maintain the confidentiality
of both those papers in check form originating from the depositor and the
depositor's bank statements and records of those same checks. However, in
U.S. v. Miller, 425 U.S. 435, 440 (1976), customer account records on a
banks' computer were held to not be private papers of the bank customer,
and, hence, there is no Fourth Amendment problem when they are subpoenaed
directly from the bank.
There are two methods towards a solution: (1) court decisions; and (2)
new legislated privacy protection.
COURT DECISIONS
NEW STATUTE
When the new law does take effect, it would first provide privacy
protection for any
Second, and more importantly for this discussion, ECPA would protect
"stored wire and electronic communications," i.e. E-Mail stored and backed
up on disk or tape on an electronic computer communication system. (18
U.S.C. sec. 2701(a)(1) and (2).) The legislation makes it a federal
criminal offense to break into any electronic system holding copies of
messages or to exceed authorized access to alter or obtain the stored
messages. (Ibid.)
CONCLUSION
[For more information on ECPA, see 132 Cong. Rec. H8977 (daily ed.
October 2, 1986) or "Major Provisions of 1986 Electronic Privacy Act,"
Congressional Quarterly Weekly Report, October 11, 1986, 2558.]