Home Law How private is your email? Not at all, experts say

How private is your email? Not at all, experts say

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Ann Bartow
Ann Bartow, professor of law at Pace Law School.

The information age has made information gathering easy – too easy, according to some. Privacy matters to people, which is why most bother to add passwords to their email accounts and other online messaging tools.

But few people understand doing so doesn’t make their content completely secure. Recently, email security has become a national topic as Gen. David Petraeus, a Cornwall-on-Hudson native, had his adulterous affair exposed because of emails. The affair captured the attention of the nation, but the subplot of email security got people asking about their own vulnerability on the Internet.

“Assume nothing you’re doing online is private,” said Ann Bartow, professor of law at Pace Law School. “The government can spy on you without any notice. They can contact the service provider, and get your information without any notification to you.”

That’s a fact many people are unaware of, Bartow added. Some believe Petraeus’ email account was accessed by the government because of his former role as the head of the Central Intelligence Agency (CIA), but anyone’s private email can be accessed by the government, Bartow said. “Service providers have extensive rights. Ads attach to emails, links are monitored. If that doesn’t give people a wakeup call I don’t know what will.”

The law that explicitly addresses emails and privacy is The Electronic Communications Privacy Act (ECPA). It was enacted in 1986 when email was in its primitive years. The ECPA protects wire, oral and electronic communications that are processed, transmitted, and stored. According to the law, to access emails the government has to present a subpoena for those stored less than 180 days and emails stored longer need a probable cause search warrant, which means there has to be evidence of wrongdoing.

“Those same rules apply to Facebook messages and tweets,” said David Menken, partner at McCarthy Fingar L.L.P. in White Plains. Facebook and Google “will tell you in their privacy document, which is enormous and complicated, their set of rules of what (information) they’ll give out by subpoena.” However, those rules have been subject to change, Menken added. Last month, the Senate Judiciary Committee approved a bill that would require law enforcement officials to obtain a warrant for most email searches, instead of just a subpoena. The Senate Judiciary Committee’s chairman, Sen. Patrick Leahy (D-Vt.), wrote the original ECPA law and is behind the push to amend it. Congress isn’t expected to address the proposed changes before next year.

As it stands, the government and employers can gain access to accounts and monitor information. Also, companies own employees’ company email accounts and can access them at any time, whether they retain employment or not. What people are starting to realize, said Bartow, is “postings follow you well after you’ve moved on with life.”

But companies have to be careful how they react to the information they’re able to access electronically. People sue over privacy issues. Service providers like Google and government agencies like the U.S. Food and Drug Administration have been hit with lawsuits this year. Netflix changed its laws so it no longer holds on to a customer’s rental history after they have ended their service contract.

“I think that the laws will evolve to make privacy more of a priority,” Menken said. “Any company has to be aware of how it can use of information on customers and employees.” Likewise, customers and employees should be aware how accessible their personal information really is.

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