E-Mail Privacy Laws Don’t Actually Protect Modern E-mail, Court Rules

Written by Julian Sanchez, a research fellow at the Cato Institute. Originally published on Tuesday, October 16th, it has been cross-posted with permission from Cato @ Liberty.

In case further proof were needed that we’re long overdue for an update of our digital privacy laws, the South Carolina Supreme Court has just ruled that e-mails stored remotely by a provider like Yahoo! or Gmail are not communications in “electronic storage” for the purposes of the Stored Communications Act, and therefore not entitled to the heightened protections of that statute.

There are, fortunately, other statutes barring unauthorized access to people’s accounts, and one appellate court has ruled that e-mail is at least sometimes protected from government intrusion by the Fourth Amendment, independently of what any statute says. But given the variety of different types of electronic communication services that exist in 2012, nobody should feel too confident that the courts will be prepared to generalize that logic. It is depressingly easy, for example, to imagine a court ruling that users of a service like Gmail, whose letters will be scanned by Google’s computers to automatically deliver tailored advertisements, have therefore waived the “reasonable expectation of privacy” that confers Fourth Amendment protection. Indeed, the Justice Department has consistently opposed proposals to clearly require a warrant for scrutinizing electronic communications, arguing that it should often be able to snoop through citizens’ digital correspondence based on a mere subpoena or a showing of “relevance” to a court.

The critical passage at issue in this case—which involves private rather than governmental snooping—is the definition of “electronic storage,” which covers “temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof” as well as “any storage of such communication by an electronic communication service for the purposes of backup protection of such communication.” The justices all agreed that the e-mails were not in “temporary, intermediate” storage because the legitimate recipient had already read them. They also agreed—though for a variety of reasons—that the e-mails were not in “backup” storage.

Some took this view on the grounds that storage “by an electronic communication service for the purposes of backup protection” encompasses only separate backups created by the  provider for their own purposes, and not copies merely left remotely stored in the user’s inbox. This strikes me as a somewhat artificial distinction: why do the providers create backups? Well, to ensure that they can make the data available to the end user in the event of a crash. The copy is kept for the user’s ultimate benefit either way. One apparent consequence of this view is that it would make a big difference if read e-mails were automatically “deleted” and moved to a “backup” folder, even though this would be an essentially cosmetic alteration to the interface.

Others argued that a “backup” presumed the existence of another, primary copy and noted there was no evidence the user had “downloaded” and retained copies of the e-mails in question. This view rests on a simple technical confusion. If you have read your Gmail on your home computer or mobile device, then of course a copy of that e-mail has been downloaded to your device—otherwise you couldn’t be reading it. This is obscured by the way we usually talk: we say we’re reading something “on Google’s website”—as though we’ve somehow traveled on the Web to visit another location where we’re viewing the information. But this is, of course, just a figure of speech: what you’re actually reading is a copy of the data from the remote server, now residing on your own device. Moreover, it can’t be necessary for the user to retain that copy, since that would rather defeat the purpose of making a “backup,” which is to guarantee that you still have access to your data after it has been deleted from your main device! The only time you actually need a backup is when you don’t still retain a copy of the data elsewhere.

Still, this isn’t really the court’s fault. Whether or not this interpretation makes sense, it at least arguably does reflect what Congress intended when the Stored Communications Act was passed back in 1986, when there was no such thing as Webmail, when storage space was expensive, and when everyone assumed e-mail would generally vanish from the user’s remote inbox upon download. The real problem is that we’ve got electronic privacy laws that date to 1986, and as a result makes all sorts of distinctions that are nonsensical in the modern context of routine cloud storage. Legislation to drag the statute into the 21st century has been introduced, but alas, there’s little indication Congress is in much of a rush to get it passed.

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