Can the Government Read My Emails?

People are familiar with the concept of “wiretapping”—the act of intercepting a person’s communication. It’s done with phone calls, text messages, emails, and more. There is some kind of communication meant to be sent from one person to another that’s captured in transit so that the government or some other entity can learn the contents of the conversation. This was outlawed with the Federal Wiretap Act of 1968 when phones were the main form of communication. At that time, communications generally shared a common feature: they were relinquished through transmission from the sender and stored by the receiver. Under this rubric, the government needed to catch the transmission in action; otherwise, the message would either disappear or receiver would store it locally, where police would need a warrant to get it.

Federal Laws on Government Reading Emails

Since the advent of cloud computing and data backups, many people archive emails in some form of storage that’s hosted by their email provider. Therefore, the communications still exist somewhere and they’re not in your possession. This was addressed by the Electronic Communications Privacy Act of 1986. Part of this amendment is called the Stored Communications Act, which prohibits unauthorized access to your emails through your email provider’s facility. In other words, if your emails are stored on Google’s servers, the police cannot call up Google and ask them to give up your emails. They would need a warrant much like they would if they went into your home.

Read Your Private Emails

It sounds simple enough, but there’s a twist: some courts have ruled that the Stored Communications Act does not protect sent emails, even though they’re retained on a server. Specifically, a panel of judges sitting on the Eighth Circuit Court of Appeals took a hard look at the exact words in the Stored Communications Act and determined that its protections only applied if the email is accessed while it’s in “electronic storage,” which has two definitions: (1) “any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof,” or (2) “any storage of such communication by an electronic communication service for purposes of backup protection of such communication.” The storage of an email that is sent and saved on a server in the “sent” folder is perhaps no longer “temporary”—but is it stored “by an electronic communication service for purposes of backup protection…”? The Court said it is not because such an email is saved “as a matter of course” and, while it can act as a backup, is not stored for that purpose.

This is an important distinction because emails that fall outside the protections of the Stored Communications Act have far less than prevent their admission in a criminal proceeding, and perhaps cannot be the subject of a lawsuit against a person or entity that invades your privacy.