Technology lawyer says to think of your emails as ‘postcards’ rather than private, sealed letters

Email is not very private. People can forward it on without your permission (and cause massive harm to your reputation). Law enforcement can look at it after six months without a warrant (thanks to dated privacy laws). And hackers can break into it and send all of your contacts annoying “I’m stranded in Scotland after being mugged and need money desperately” messages.

Technology lawyer Mark A. Berman writes in the New York Law Journal that you should stop thinking about your inbox as a private place:

People continue to rely on their belief that the contents of e-mails, like phone calls, are sacrosanct and what is “said” in e-mail communication remains “confidential” to everyone other than the parties to them.

However, that expectation of privacy is breaking down by the day. E-mails should more properly be viewed as a “postcard” or a conversation over a speakerphone, both open and available to a passerby to hear or see, than like a private “confidential,” “sealed” letter.

via Expectations of Privacy in E-Mail Communications.

He does have some suggestions, though, on what you can do to keep the conference room door on that speakerphone conversation closed…

Berman takes a look at some of the questions judges are asking in ruling on whether emails are considered private or not:

Courts ask, for instance, does a sender leave his or her e-mail account “open” on a computer for others to see or access? Courts also look to whether the e-mail is sent or received via a corporate system or through a personal account; whether the computer used for such communication is owned by an employer or an individual; and whether, when the communication was transmitted, the computer at issue was located in a company’s office or at a home?

via Expectations of Privacy in E-Mail Communications.

In the work context, know what the policy is at your office:

Courts want to know whether permission has been granted to others (or revoked) to review one’s e-mails, and whether it is in writing or oral, or was permission (or revocation) more implicit by, perhaps, manifesting itself through custom or practice.

We saw this tension recently in the Supreme Court decision in the Quon case, when the Court ruled that a SWAT officer should have realized his pager messages might need to be reviewed for official purposes despite being told orally that they wouldn’t be looked at.

In the love life context, think carefully about to whom you’ve given your password:

In Gurevich v. Gurevich, a matrimonial action, the court held that e-mails a wife “retrieved” from her husband’s account were admissible. The wife knew her husband’s password and he failed to change it until two years following their separation.

The court noted that, through counsel, plaintiff asserted that her husband never formally rescinded his permission for her to look at his e-mails.

Based on Berman’s article, good advice boils down to this:

1. Sign out of your email account when you’re not at your computer.
2. Don’t store passwords in your browser.
3. But have passwords. Lots of passwords. For signing into your computer and signing into your email.
4. Check your personal email on your personal smartphone rather than on your work computer.
5. Change all passwords after a break-up. Significant others and exes are sneakier than the po-po.