On October 8, 2007, the United States Court of Appeals for the Sixth Circuit in Cincinnati granted the government's request for a full-panel hearing in United States v. Warshak case centering on the right of privacy for stored electronic communications. At issue is whether the procedure whereby the government can subpoena stored copies of your email - similar to the way they could simply subpoena any physical mail sitting on your desk - is unconstitutionally broad.

This appears to be more than a mere argument in support of the constitutionality of a Congressional email privacy and access scheme. It represents what may be the fundamental governmental position on Constitutional email and electronic privacy - that there isn't any. What is important in this case is not the ultimate resolution of that narrow issue, but the position that the United States government is taking on the entire issue of electronic privacy. That position, if accepted, may mean that the government can read anybody's email at any time without a warrant.

What is Privacy?

In a seminal case (Katz v. United States in 1963) the US Supreme Court, over the strenuous objections of the US government, upheld the right of the user of a payphone to claim a right to privacy in the contents of those communications. The Court held that the Fourth Amendment right to be secure in your "persons, house, places and effects" against unreasonable searches and seizures protected people, not just places. Thus, to determine whether you had a right against unreasonable seizure - a kind of privacy right - the court adopted a two-pronged test: did you think what you were doing was private and is society willing to accept your belief as objectively reasonable?

The method you use to communicate can effect both your subjective expectation of privacy and society's willingness to consider that expectation as "reasonable." Shouting a "private" conversation into a megaphone at Times Square would neither be subjectively nor objectively reasonable, if you wanted the conversation to be confidential. "Broadcasting" the conversation over the radio is likewise unreasonable.

But, what about "broadcasting" it over an unsecured Wi-Fi router, analog cell phone, or cordless telephone? While certain statutes may make the interception of such communications unlawful, absent such statutes is there a Constitutional prohibition on listening in? Put more narrowly, if the cops listen in on your baby monitor, do they violate your "right to privacy," or do you give up your right by knowingly putting the monitor in little Timmy's room in the first place?

Partial Waiver

Do you have a "reasonable expectation of privacy" in the contents of email you send and receive at work, using a work computer, over a company supplied network, where the company has a "business use only" policy, and an employee monitoring policy that states that any communications may be monitored? Think about it. Indeed, the policy will go further and says "users have no expectation of privacy." But is this true? Or, is it even a good idea?

Remember Katz? The Constitution only protects reasonable expectations of privacy. If you have no reasonable expectation of privacy in your email, then the examination of the contents of your email by anyone for any purposes is not an invasion of privacy and raises no Fourth Amendment concerns.

What you really mean in your policy is that your employer (your supervisor, the IT staff, HR, legal, etc.) may examine the contents of your e-mail for legitimate reasons and if they choose to, disclose the contents to whatever third parties they deem reasonable. Fair enough. But, it also means that you can't read your bosses' email or your co-workers' email, just because you are curious. Why not? Because they have an "expectation of privacy" in their email.

Privacy is not like virginity - you either have it or you don't. You can have privacy rights with respect to some uses by some people and not with respect to other uses by other people. Right? Well, not according to the government.