If your employer comes into your office, and sees sitting on your desk a se aled letter addressed to you, and if she then picks the letter up and opens it, she has committed a federal crime. It is a crime to intercept a letter carried by the US Postal Service.
What if the employer, sitting with your email system operator, looks through your email inbox, and seeing an email sent to you from someone outside the company, proceeds to open that? Is that a crime? No. Has the employer violated your rights? Not necessarily. As we have already discussed, the law may consider you to have consented to this invasion.
If your employer picks up the telephone while you are on the line, and records a personal conversation with your husband, she has violated your privacy -- a tort, or possibly a crime, depending upon the state. But if your employer looks through your email, or routinely backs up all your email and then looks through the email, she might not have violated your privacy.
What's the difference? In one sense, there is no difference at all. People no less expect their letters to be private than their email. They no less feel a violation if their telephone conversations are recorded than if their personal email is perused. But from a legal perspective, the difference is clear: As we have said a number of times so far, the law has not caught up with the technology, nor with our sense of privacy in the technology.
From the law's perspective, the email is the company's. It is on the company's machine. And from the company's perspective, if you don't want your personal conversations perused by the company, don't do it on their machines. But what about the telephone? That too is the company's. Why doesn't the argument "it's my property" work there? Well again, part of the reason is that telephone conversations are fleeting in a way that email is not -- or at least that is the ordinary case, and the ordinary case is what people expect.
When you record a telephone conversation, you are doing something out of the ordinary; and it is that surprise that is at the root of the complaint. It is clear the law is changing. It is changing because these property notions ("it's my machine") rarely control in the context of privacy.
Primarily through legislation, but also through the common law of tort, law may be coming to understand that a personal email is like a personal letter is like a personal telephone - something that should be protected from the snooping eyes of others - whether the others are the government, or the employers.
Right now, however, this privacy has little protection at all. Right now, that is, the snoops have the technology and the law on their side, so those seeking privacy in their electronic communications must also rely upon technology - encryption, or anonymity.
authors:
| Larry Lessig | David Post | Eugene Volokh |
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