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Opinion

Who else reads your e-mail?

Your employer and the government can snoop legally.

(Page 2 of 2)



In 2005, The New York Times exposed a program of "warrantless wiretapping" of communications, including e-mail between individuals in the US and foreign countries. Congress codified the legality of some such searches in 2007 and again this summer. In a word, the rules change when "terrorism" is invoked as a justification. If the government demands your e-mail using a National Security Letter, your service provider is prohibited from telling you.

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Searching e-mail as it crosses the US border is perhaps analogous to inspecting a laptop carried into the US Customs officials can inspect (and confiscate) your possessions; arguably they should also be able to search your e-mail – though under antiterrorism legislation, the eavesdropping can happen without your knowledge.

What about purely domestic e-mail surveillance without a warrant? The Terrorist Surveillance Program processes domestic e-mail in cooperation with Internet service providers; the Electronic Frontier Foundation has taken the government to court. But eavesdropping occurs even for nonterror-related crimes.

As part of the investigation of one Steven Warshak, Yahoo turned over his e-mail to federal agents, who had not gotten a warrant. A lower court threw out the evidence, but on July 11, a Federal Appeals Court allowed it to stand. The court didn't say that there was no constitutional issue, only that the case had enough other complexities that a Fourth Amendment ruling about e-mail would be premature. A minority of the court was not satisfied with that technical dodge, and stated in its blistering opinion,

"[H]eaven forbid that we should intrude on the government's investigatory province and actually require it to abide by the mandates of the Bill of Rights. I can only imagine what our founding fathers would think of this decision. If I were to tell James Otis and John Adams that a citizen's private correspondence is now potentially subject to … unannounced searches by the government without a warrant supported by probable cause, what would they say? Probably nothing, they would be left speechless."

So as of today, we don't know whether the government can search your e-mail without a warrant, as happens routinely in China.

My advice? Be careful putting secrets in e-mail. Use encryption software, some of which is free. And urge Congress to act on e-mail privacy.

Harry Lewis is a professor of computer science at Harvard University and fellow of the Berkman Center for Internet and Society. With Hal Abelson and Ken Ledeen, he is coauthor of "Blown to Bits: Your Life, Liberty, and Happiness After the Digital Explosion."

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