Reasonable Expectations in Electronic Communications: A Critical Perspective on the Electronic Communication Privacy Act

Privacy and Security

Article Snapshot

Author(s)

Deirdre Mulligan

Source

George Washington Law Review, Vol. 72, pp. 1557, 2004

Summary

This paper looks at privacy protection for email messages.

Policy Relevance

The Electronic Communications Privacy Act of 1986 (ECPA) should be revised to give stored email the same privacy protection as phone calls and letters.

Main Points

  • In 1986, the Electronic Communications Privacy Act of 1986 (ECPA) was passed, setting out ground rules for law enforcement access to electronic messages like email that are stored on remote servers.
    • Police must get a warrant before tapping phone calls, but email stored over 180 days does not get this much protection. 

  • Supreme Court constitutional case law extends privacy protection to messages that we have a “reasonable expectation” will be private. Stored business records get little privacy protection because the contents have been revealed to the business.

  • People are surprised to learn that ordinary letters, phone calls, and email messages in storage get different levels of privacy protection. The law is inconsistent with people’s expectations.

  • The Constitution should protect the privacy of stored email. Unlike business records, they do not relate to the business and people will not expect the business to disclose the contents.

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