Friday, December 29, 2006

Does government have a right to read your e-mail?

The man behind the "Smiling Bob" commercials, Steven Warshak, has filed a lawsuit against the federal government after it obtained e-mail from his Yahoo account without a search warrant. It should come as no surprise that the outdated law that allows the government to do this was passed in 1986, well before electronic mail became a fixture of daily life for millions of Americans.

The federal government argues that people who have their e-mail stored on another computer do not have a reasonable expectation of privacy. It is true that when your communications are stored on someone else's property, they have the right to screen those communications for objectionable or illegal material. E-mail accounts someone has from his employer have an even lower expectation of privacy.

However, there is a significant difference between a private e-mail provider (or an employer) having access to messages stored on their servers and allowing government to have access to e-mail for everyone. The Fourth Amendment was written specifically to protect people against an abusive government. If government has the power to snoop in e-mail without a search warrant, the potential for abuse is significant.

The government argues that the potential abuse is minimized because "a search of stored e-mail still requires a subpoena from a prosecutor or a court order from a judge." In other words, someone who uses a desktop e-mail program to access Hotmail, Yahoo or GMail (in some cases for a fee) is protected but someone who uses web mail is not. This makes no sense whatsoever. Why does it matter if the e-mail is stored on a server somewhere or on a home computer?

Electronic mail, under any reasonable interpretation, is covered by the Constitution's guarantee that we are to be secure in our "papers" from unreasonable government intrusion. No one is arguing that e-mail be completely private, because that would be foolish in the post 9/11 world. Civil libertarians simply want the government to follow the rule of law in doing so. A huge amount of business activity is done over electronic mail, in addition to personal communication with family and friends. The Supreme Court should strike down a law that might have made sense twenty years ago but makes no sense in 2006.