Re: Expectation of privacy

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On 05/02/2013 07:48 PM, Bill Oliver wrote:

In another thread, respondents debated the expectation of privacy
regarding email. I think this is a reasonable topic for an email mailing
list, since there are many differing perceptions.

Of course, laws and customs vary across the world. In the United States,
there is a rather complex hierarchy of limitations of scrutiny of
electronic communication, particularly by the government. In general,
there is:

1) No recgnized expectation of privacy with respect to most header
information (to, from, addressing and routing information, etc).

2) No recognized expectation of privacy regarding aggregate information
that would be logged by a provider (number of emails sent, websites
visited, amount of data transmitted, etc).

3) There is variable expectation of privacy regarding the content of the
email.

3a) There is a reasonable expectation of privacy regarding email sent
from one person to one other person.

3b) With respect to mailinglist emails, the Supreme Court concluded in
US v Maxwell:

"Expectations of privacy in e-mail transmissions depend in large part on
the type of e-mail involved and the intended recipient. Messages sent to
the public at large in the "chat room" or e-mail that is "forwarded"
from correspondent to correspondent lose any semblance of privacy. Once
these transmissions are sent out to more and more subscribers, the
subsequent expectation of privacy incrementally diminishes. This loss of
an expectation of privacy, however, only goes to these specific pieces
of mail for which privacy interests were lessened and ultimately
abandoned."

4) Finally, emails that are *stored after reading* on a server lose the
expectation of privacy. The analogy the courts used was that of a paper
letter. A sealed letter delivered to a recipient carries an expectation
of privacy. Once the recipient has opened the letter, the expectation of
privacy depends on what he or she does with it -- it is the
responsibility of the recipient, not the sender. If the recipient puts
the letter in a safe, it retains the expectation. If the recipient
leaves it sitting on the table and walks away, it loses the expectation
of privacy. In the eyes of the court, saving an email on a server
constitutes putting it on the desk and walking away. Similarly,
abandoned emails lose the expectation, just as abandoned letters do.
Thus, email that is stored on a server eventually loses its expectation
of privacy even if not read.

In addition, there are differences in *who* can read emails. For
instance, while the government may be limited in some instances, a
private company can read any communications made by any employee on a
company machine, at least if there is notification somewhere.

The effect of warnings, banners, and statements of privacy are variable,
depending on the relationship of the sender and recipient. Generally,
the banners are effective in removing rather than providing an
expectation of privacy. They seem to be meaningless in a practical
manner with it comes to multiple recipient emails sent outside a closed
organization.

In my profession as a forensic pathologist, I am frequently called to
court. Occasionally I, and some of my colleagues, have been surprised to
find that emails we sent to mailinglists of various sorts pop up as
exhibits when people attempt to challenge our testimony. The admission
of these has never been successfully challenged on the basis of
expectation of privacy in any of the cases I'm aware of.

Any person who expects that their emails to a mailinglist are private
is, at least in the US, doomed to disappointment. If you don't want your
emails published generally, don't send them to a mailinglist.


billo



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