Expectation of E-mail Privacy Vanishes Upon Receipt

One of the ways the law evolves is by its use of analogies. Courts use them to apply centuries old legal principles to scenarios that couldn’t have been imagined even a decade ago.

And so in that spirit, a federal court in Utah recently had to decide which analogy best captures the concept of e-mail. Is it more like a telephone call or more like a letter? The question came up in a criminal case. A defendant moved to suppress a number of e-mails the prosecution had obtained via a search warrant to the e-mail recipient.

The defendant argued  the e-mail was like a telephone call – where the expectation of privacy is high enough to overcome the state’s right to introduce that communication. In the defendant’s view, e-mail communication is “instantaneous” – much like a telephone conversation. And the “interception” of that communication violates the privacy of everyone involved.

But the court disagreed. It found that any expectation of privacy in the e-mail message terminated once it was received. Just like it does for a delivered letter. And since the messages were seized after delivery, which eliminated the expectation of privacy, there was no reason to suppress them.

The decision makes sense. The defendant argued e-mail is “non-tangible” — like the words in a telephone conversation. But that seems a little off. The received message sits in an in-box and it can be printed, forwarded or otherwise shared with one or two mouse clicks. Which I think makes it tangible enough for Fourth Amendment purposes.

The court noted that an e-mail is “intercepted” only if a third party gets it while in transmission. In that case, the analogy would be like a seizure of letters sitting at the post office. We expect that not to happen. But since we really can’t control what the recipient will do with the e-mail once delivery is complete – any expectations of privacy are best held in check. The analogy here? It’s like telling a “secret” to a gossipy co-worker. Good luck keeping that under wraps.