The US Supreme Court declined on Monday to take up a case testing to what extent personal e-mail is protected by federal privacy law.
Most Americans believe that their private e-mail accounts are at least as secure from prying eyes as paper-based snail mail that arrives at their front doors. It is not.
The federal privacy law governing e-mail and digital communications was passed in 1986, long before Internet-based e-mail became an essential form of personal communication in the US.
The appeal in Jennings v. Broome (12-831) was asking the high court to resolve divergent judicial opinions, one released by a federal appeals court in California and, most recently, one announced by the South Carolina Supreme Court. By refusing to take up the case, the justices are allowing the divergent opinions to remain in place. Sometimes this is done to permit a more suitable case to arrive at the high court. The justices did not explain why they rejected the case.
The e-mail privacy issue arose in a South Carolina case involving marital infidelity. Gail Jennings found a card for flowers in her husband’s car. She couldn’t recall receiving flowers. When she confronted her husband about it, Lee Jennings confessed that he’d fallen in love with another woman. Mr. Jennings admitted that he had been corresponding with the woman via e-mail, but he refused to reveal her name.
Gail Jennings discussed the issue with her daughter-in-law (from another marriage), Holly Broome. Ms. Broome had worked for Mr. Jennings and knew he had a personal e-mail account with Yahoo. She hacked into the account by guessing the answers to his security questions and resetting his password. Broome then printed out copies of incriminating personal e-mails and turned them over to Gail Jennings, Gail’s divorce lawyer, and a private investigator.
When Mr. Jennings discovered his e-mail had been hacked, he sued Gail, Broome, and the investigator for allegedly invading his privacy and violating the federal Stored Communications Act.
A state judge dismissed the case. An appeals court upheld the dismissal as to Gail and the investigator, but the appellate court said Mr. Jennings could sue Broome under the Stored Communications Act because the disclosed e-mails were in “electronic storage” at the time they were accessed and were thus covered by the federal law.
The South Carolina Supreme Court disagreed. “We find these emails were not in electronic storage,” the court said. The justices reasoned that once an e-mail recipient opens a message, that e-mail is no longer in electronic storage, even though Jennings left his e-mails on the Yahoo server.
The bottom line was that Broome could not be held liable under the Stored Communications Act for accessing and disclosing the content of Jennings’ e-mails.
Appellate lawyers were hoping the US Supreme Court would take the case and determine when an e-mail is in “electronic storage” under the Stored Communications Act. The issue is critical in determining what level of privacy protection applies to e-mails, both read and unread.
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.
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.”