Supreme Court refuses e-mail privacy case, leaving divergent opinions intact
Does federal privacy law protect personal e-mail from prying eyes? Lower courts conflict, but the Supreme Court on Monday declined to take a case that might have clarified the extent of protections.
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Under a narrow interpretation of the law the most robust privacy protections would apply only to e-mails that had not yet been read by the recipient. Once read, the protections of the statute would disappear, even though the e-mail might remain available in the e-mail account.Skip to next paragraph
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This is the position supported by the Obama administration, a stance long favored by federal investigative agencies because it allows significant surveillance activities without having to apply to a judge for a warrant.
In 2003, the Ninth US Circuit Court of Appeals in San Francisco embraced a broad reading of the statute. That court said the law requires a higher level of privacy protection not only for unread e-mails, but also for e-mails that have already been opened and viewed but are nonetheless being retained in the e-mail account.
“We acknowledge that our interpretation of the Act differs from the government’s and do not lightly conclude that the government’s reading is erroneous,” Judge Alex Kozinski wrote in the opinion.
“Nonetheless,” he said, “we think that prior access [to an e-mail] is irrelevant to whether the messages at issue were in electronic storage.”
While the government cannot intercept and open a private letter without a probable cause warrant approved by a judge, federal agents can, under certain circumstances, scroll through personal e-mails by simply requesting access to the messages through a subpoena with no judicial oversight.
The key question is whether the e-mails are being held in “electronic storage” as defined under the Stored Communications Act. If they are, higher privacy standards must apply.
Questions about e-mail privacy burst into the headlines last year after federal agents examined the personal emails of then CIA Director David Patraeus. The messages revealed that Mr. Patraeus had engaged in an extramarital affair. That information was later disclosed to the news media, and Patraeus resigned in November.
“Privacy is such an essential component of digital interactions that users remain largely unaware of the risks to exposure of their private communications. They assume, rightfully so, that there are legal and technical protections in place to prevent unauthorized access to and disclosure of their private affairs,” wrote Marc Rotenberg of the Electronic Privacy Information Center, in a friend-of-the-court brief urging the Supreme Court to take up the case.
Mr. Rotenberg noted that none of the e-mail messages reviewed by federal agents in the Patraeus scandal involved any crime.
“The thin basis on which the original investigation was launched and the apparent lack of criminal conduct did not, of course, prevent law enforcement from gaining access to a large volume of private messages,” Rotenberg wrote. “Nor did it prevent the parties involved from suffering substantial embarrassment and economic loss as the contents of their private emails were accessed and publicized.”