Date: Fri, 23 Aug 1996 08:09:17 -0500 Sender: Legal Scholarship Network From: Alan Lewine Subject: Cyberspace-Law #25: Privacy 13 -- Private Spaces To: Multiple recipients of list CYBERSPACE-LAW CYBERSPACE LAW FOR NON-LAWYERS Topic: PRIVACY 13: PRIVATE SPACE (Number 13 of 13 on the topic PRIVACY) (Next post will begin TRADEMARK) E-Mail Number: 25 Date Posted: 23 August 1996 * * * * * * * * * TITLE: PRIVACY 13: PRIVATE SPACES If your employer comes into your office, and sees sitting on your desk a sealed 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 * * * * * * * * * * * * * * * * * * * * * * Cyberspace-Law for Non-Lawyers is presented by the Cyberspace Law Institute, Social Science Electronic Publishing, and Counsel Connect. Please note that this is an announcement-only list and not a discussion list. Do not attempt to post comments to the list, as they will be ignored. An open discussion about these issues is being held at our archive web site at http://www.counsel.com/cyberspace which also contains an archive of the course materials. You can retrieve all of the material posted to date for Cyberspace-Law For Non-Lawyers by sending e-mail to: LISTSERV@PUBLISHER.SSRN.COM with the (optional) subject line: GET INDEX and the in the body, type the message: GET CYBERSPACE-LAW.LOG9608 ------------------------------------------------------------ To subscribe to cyberspace-Law, send e-mail to: LISTSERV@PUBLISHER.SSRN.COM with the subject line (optional): SUBSCRIBE and the body message in the first line: SUBSCRIBE CYBERSPACE-LAW FIRSTNAME LASTNAME replacing "FIRSTNAME" and "LASTNAME" with your first and last names (or such pseudonyms as you prefer). To signoff (unsubscribe to) Cyberspace-Law, send a message to: LISTSERV@PUBLISHER.SSRN.COM with the subject line (optional): SIGNOFF and the body message in the first line: SIGNOFF CYBERSPACE-LAW (Do NOT include your name in an unsubscribe message.) Yours virtually, Alan Lewine Cyberspace-Law Listmeister Alan_R_Lewine@SSRN.com