COMPUTER ELECTRONIC MAIL AND PRIVACY by Ruel T. Hernandez 801 Cedarbend Way Chula Vista, C

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COMPUTER ELECTRONIC MAIL AND PRIVACY ==================================== by Ruel T. Hernandez 801 Cedarbend Way Chula Vista, California 92010 (619) 421-6517 (voice) (CompuServe: 71450,3341) (GEnie Mail: R.HERNANDEZ) January 11, 1987 Copyright (c) 1986, 1987 by Ruel T. Hernandez (This is an edited version of a law school seminar paper I wrote at California Western School of Law. A another version of the paper, entitled "Electronic Mail - Your Right to Privacy," by Ruel T. Hernandez as told to Dan Gookin, was published as the cover story in The Byte Buyer, San Diego's Microcomputer Magazine, volume 4, number 24, December 5, 1986. That version may also be found on their BBS at 619/226-3304 or 619/573-0359. Note, citations to the Electronic Communications Privacy Act of 1986 refer to the final version passed by the House of Representatives on October 2, 1986, which was passed by the Senate the day before, as listed in the Congressional Record.) INTRODUCTION Two years ago, legislation was introduced into Congress that sought to provide federal statutory guidelines for privacy protection of computer communications, such as electronic mail found on commercial computer systems and on remote computer systems, commonly known as bulletin board systems (BBS). Old federal wiretap law only gave protection to normal audio telephonic communications. There was no contemplation of computers or their operators using telephone lines to communicate. The old federal wiretap law regulated police interceptions of communications while they are being transmitted on a telephone line. Before the Electronic Communications Privacy Act of 1976, the law did not provide guidelines for protecting the transmitted message once it was stored within a computer system. QUESTIONS (1) Whether electronic mail and other intended private material stored within an electronic computer communication system have Fourth Amendment privacy protection? (2) Should private electronic mail and other such material be accorded the protection guidelines as with telephone communication and the U.S. Mail? PROBLEM Law enforcement seeks criminal evidence stored as E-Mail on either a local, user-supported BBS, or on a commercial computer service, such as CompuServe, GEnie or The Source. (Note, this situation is equally applicable to personal, private data stored on a remote system for later retrieval, as with CompuServe's online disk storage capabilities.) For instance, a computer user calls up a computer communication system. Using the electronic mail function, he leaves a private message that can only be read by an intended recipient. The message is to inform the recipient of a conspiracy plan to violate a federal or state criminal statute. Law enforcement gets a tip about the criminal activity and learn that incriminating evidence may be found on the computer system. In 1982, such a situation occurred. (Meeks, Brock, "Life at 300 Baud: Crime on the BBS Network," Profiles, August, 1986, 12-13.) A Detroit federal grand jury, investigating a million-dollar cocaine ring, issued a subpoena ordering a commercial service, The Source, to hand over private subscriber data files. The files were routinely backed up to guard against system crashes. The grand jury was looking for evidence to show that the cocaine ring was using The Source as communication base to send messages to members of the ring. With such evidence, the grand jury could implicate or indict those suspected to be a part of the cocaine ring. The Source refused to obey the subpoena. The prosecution argued The Source could not vicariously assert a subscriber's privacy rights. Constitutional rights are personal and could only be asserted by the person whose rights are invaded. Additionally, if the files containing messages were duplicated, any reasonable expectation of privacy by users would be extinguished. A court battle ensued. However, before a ruling could be made, the kingpin of the cocaine ring entered a surprise guilty plea to federal drug trafficking charges. The case against the Source was discontinued. Publicly posted messages and other public material may be easily retrieved by law enforcement. It is the private material, such as E-Mail, that poses the problem. Law enforcement's task is then to gather enough evidence to substantiate a criminal case. Specifically, they would want the E-Mail, or other private files, transmitted by suspected criminals. A computer communications service, as keeper and transmitter of private electronic messages, would not want to turn over the private data. INADEQUACY OF OLD LAW Brock Meeks of Profiles magazine noted that as of August, 1986, "no ... protection exist[ed] for electronic communications. Any law enforcement agency can, for example, confiscate a local BBS and examine all the message traffic," including and private files and E-Mail. (Ibid.) In the next section, case law will be examined and statutory law prior to the Electronic Communications Privacy Act of 1986 (ECPA) will be noted. Seemingly applicable statutes, as they stood, provided no guidelines for privacy protection of electronic computer communication systems, such as CompuServe, GEnie, and local, user-operated BBSs. CASE LAW There is little case law available on computer communications and Fourth Amendment constitutional problems. (M.D. Scott, Computer Law, 9-9 (1984 & Special Update, August 1, 1984).) If not for the surprise preemptive guilty plea, the above described Detroit case may have provided guidance on computer communications and privacy issues. Of the available cases, Scott noted those that primarily dealt with financial information found in bank and consumer credit organization computers. In U.S. v. Davey, 426 F.2d 842, 845 (2 Cir. 1970), the government had the right to require the production of relevant information wherever it may be lodged and regardless of the form in which it is kept and the manner in which it may be retrieved, so long as it pays the reasonable costs of retrieval. In a California case, Burrows v. Superior Court, 13 Cal. 3d 238, 243, 118 Cal. Rptr. 166, 169 (1974), a depositor was found to have a reasonable expectation that a bank would maintain the confidentiality of both those papers in check form originating from the depositor and the depositor's bank statements and records of those same checks. However, in U.S. v. Miller, 425 U.S. 435, 440 (1976), customer account records on a banks' computer were held to not be private papers of the bank customer, and, hence, there is no Fourth Amendment problem when they are subpoenaed directly from the bank. The computer data and information in these cases have more of a business character in contrast to personal E-Mail found on remote computer systems such as CompuServe or a local BBS. Under the old law, a prosecutor, as in the Detroit case, may try to analogize duplicated and backed up E-Mail to business situations where data on business computer databases are also backed up. Both types of computer data are stored on a system and then later retrieved. The provider of the remote computing service or the sysop would counterargue that the nature of computers always require the duplication and backup of any computer data, whether the data files are E- Mail or centrally-based financial or credit data. Duplication does not necessarily make E-Mail the same as financial or credit data stored in business computers. Centrally-based business information is more concerned with the data processing. That information is generally stored and retrieved by the same operator. E-Mail is more concerned with personal communications between individuals where the sender transmits a private message to be retrieved only by an intended recipient. The sender and the recipient have subjective expectations of privacy that when viewed objectively is reasonable. Therefore, there is a constitutionally protected expectation of privacy under Katz v. U.S., 389 U.S. 347, 19 L.Ed. 88 S.Ct. 507 (1967). However, the prosecution would note under California v. Ciraolo, -- U.S. --, 106 S.Ct. 1809 (1984), the users would have to protect their electronic mail from any privacy intrusion. The provider or operator of the remote system has ultimate control of his system. He has complete access to all areas of the system. He could easily examine the material. The prosecution would note the user could not reasonably protect his private data from provider or operator invasion. This "knot-hole" would exclude any idea of privacy. If there is no privacy, there can be no search and therefore no Fourth Amendment constitutional violation. Law enforcement can retrieve the material. FEDERAL WIRETAP STATUTES The federal wiretap statutes, before the Electronic Communication Privacy Act of 1986, protected oral telephone communications from police interceptions. This protection was made in 1968 in response to electronic eavesdropping by government. (Cohodas, Nadine, "Congress Races to stay Ahead of Technology," Congressional Quarterly Weekly Report, May 31, 1986, 1235.) Although E-Mail appears to come under the statute's definition of "wire communication," under the old law, it was limited to audio transmissions by wire or cable and does not mention stored computer data. (18 U.S.C. sec. 2510(1).) The old law required that an interception of a wire communication be an aural acquisition of the communication. (18 U.S.C. sec. 2510(4).) Being "aural," the communication must be "heard." Therefore, a computer communication may come under the old law while being transmitted. After a caller's message is "sent" on a remote computer system, the message is then stored within the computer's system. The communication's conversion into computer stored data, thus no longer in transmission until retrieved, takes the communication out of the old statutory protection. "Eighteen years ago ... Congress could not appreciate - or in some cases even contemplate - [today's] telecommunications and computer technology...." (132 Cong. Rec. S7992 (daily ed. June 19, 1986) (statement of Sen. Leahy).) CALIFORNIA'S INVASION OF PRIVACY AND WIRETAP STATUTE California's "invasion of privacy" and wiretap statutes (Cal. Penal Code sec. 630 et seq.), appears to provide state protection for BBSs. California Penal Code sec. 637 reads as: Every person not a party to a telegraphic or telephonic communication who willfully discloses the contents of a telegraphic or telephonic message, or any part thereof, addressed to another person, without the permission of such person, unless directed so to do by the lawful order of a court, is punishable by imprisonment in the state prison, or in the count jail not exceeding one year, or by fine not exceeding five thousand dollars ($5000), or by both fine and imprisonment. Again, the question here would be whether "telegraphic or telephonic messages" include computer communications via modem where a transmitted message is subsequently stored within a computer awaiting retrieval by its intended recipient. Again, the storage of the data takes the computer communications out of the statute. When the statute was passed, the California legislature, much like the Congress, could not foresee the technological advances in computer communications. It should be noted that Assemblywoman Moore introduced legislation in 1985 that would amend have the California state constitution to explicitly provide state constitutional privacy protection for remote computing services and their stored information. However, nothing has come out of this. Aside from political reasons for the lack of further action is one possible legal consequential argument against the amendment may be if computer privacy protection is specified in the state constitution, more litigation may result to tie up the courts in cases deciding whether or not there is privacy protection for other unspecified matters. Although, overall, the California state constitution is much more specific than the United States Constitution, it may be best to not be any more specific with regard to privacy. PROTECTION FOR U.S. MAIL Statutory U.S. Mail protection provides a suggestion for statutory provisions of privacy protection for E-Mail deposited in electronic communication systems. The unauthorized taking out of and examining of the contents of mail held in a "depository for mail matter" before it is delivered to the mail's intended recipient is punishable by fine, imprisonment, or both. (18 U.S.C. sec. 1702.) SOLUTION - THE NEW LAW There are two methods towards a solution: (1) court decisions; and (2) new legislated privacy protection. COURT DECISIONS Courts may have chosen to read computer communications protection into the old federal wiretap statute or into existing state law. However, they were reluctant to do so. Courts "are in no hurry to [revise or make new law in this area] and some judges are openly asking Congress for help.... [F]ederal Appeals Court Judge Richard Posner in Chicago said Congress needed to revise current law, adding that 'judges are not authorized to amend statutes even to bring them up-to-date.'" (Cohodas, Nadine, "Congress Races to Stay Ahead of Technology," Congressional Quarterly Weekly Report, May 31, 1986, p. 1233.) NEW STATUTE Last October 21, 1986, President Reagan signed the Electronic Communications Privacy Act of 1986 amending the federal wiretap law. The new Act (P.L. 99-508) would not take immediate effect until three months after the signing - presumably January 21, 1986. (18 U.S.C. secs. 111 and 202.) When the new law does take effect, it would first provide privacy protection for any 'electronic communication' ... [by] any transfer of signs, signals, writing, images, sounds, data or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system that affects interstate or foreign commerce...." (18 U.S.C. sec. 2510(10).) Second, and more importantly for this discussion, ECPA would protect "stored wire and electronic communications," i.e. E-Mail stored and backed up on disk or tape on an electronic computer communication system. (18 U.S.C. sec. 2701(a)(1) and (2).) The legislation makes it a federal criminal offense to break into any electronic system holding copies of messages or to exceed authorized access to alter or obtain the stored messages. (Ibid.) The legislation would protect electronic computer communication systems from law enforcement invasion of user E-Mail without a court order. (18 U.S.C. sec. 2703.) Although the burden of preventing invasion of the E-Mail is placed on the subscriber or user of the system, the government must give him notice allowing him fourteen days to file a motion to quash a subpoena or to vacate a court order seeking disclosure of his computer data. (18 U.S.C. sec. 2704(b).) However, the government may give delayed notice when there are exigent circumstances as listed by the Act (18 U.S.C. sec. 2705.) The legislation gives a civil cause of action to the provider or operator, subscriber, customer or user of the system aggrieved by an invasion of private material stored in the system in violation of ECPA. (18 U.S.C. sec. 2702; see also 18 U.S.C. sec. 2520.) If the provider or operator has to disclose information stored on his system due to a court order, warrant, subpoena, or certification under ECPA, there can be no cause of action against him by any person aggrieved by such disclosure. (18 U.S.C. sec. 2703(e); see also sec. 2702(b).) The electronic communications, under this new Act, must be sent by a system that "affects interstate or foreign commerce." (18 U.S.C. sec. 2510(12).) The "electronic communications" may practically be limited to electronic communications sent by common carrier telephone lines. There may be some question as to whether or not ECPA is confined to commercial systems and does not cover user-operated bulletin board systems. That would be similar to arguing the old federal wiretap law was confined to long distance communications and not to local telephone calls. The House report (H.R. No. 647, 99th Cong. (1986)), indicates user-operated BBSs are intended to be covered by the Act. The House noted a difference between commercial subscription systems and user-operated BBSs readily accessible by the public. However, it also noted the different levels of security found on user-operated BBSs, i.e. the difference between system areas containing private electronic mail and other areas containing public information. Electronic communications that the operator attempts to keep confidential would be protected by ECPA, while there would be no liability for access to features configured to be readily accessible by the general public. Language in the Act also refers to "the person or entity providing the wire or electronic communication service." Such language may be seen to indicate the inclusion of individuals who operate a BBS. (18 U.S. secs. 2701(c)(1) and 2702(a)(1) and (b).) Additionally, a remote computing service was defined in the Act as an electronic communications system that provides computer storage or processing services to the public. (18 U.S.C. sec. 2710(2).) This would certainly be applicable to a user-operated BBS that is easily accessible to public with the simple dialing of a telephone number by a modem-equipped computer. On the political side, Senator Leahy, a principal sponsor of the Act was reported to have been "soliciting [users and operators' of BBSs] comments and encourage sensitivity to the needs of BBS's in the legislation.... They are ... willing to listen to our side of things." (BBSLAW02.MSG, dated 07/24/85, information from Chip Berlet, Secretary, National Lawyers Guild Civil Liberties Committee, transmitted by Paul Bernstein, SYSOP, LAW MUG, Chicago, Illinois 312/280-8180, regarding Federal Legislation Affecting Computer Bulletin Boards, deposited on The Legacy Network 213/553-1473.) CONCLUSION Electronic mail stored on computer communication systems have Fourth Amendment constitutional privacy protection. Unfortunately, before the Electronic Communications Privacy Act of 1986, such protection was not articulated by federal or state statutory guidelines. Case law also did not provide any helpful guidance. The peculiarities of computers and computer storage posed problems which were not addressed by the old wiretap laws. They were also problems overwhelmed by constitutional privacy law as defined by the United States Supreme Court. A legislative solution was required and was provided for by ECPA. [For more information on ECPA, see 132 Cong. Rec. H8977 (daily ed. October 2, 1986) or "Major Provisions of 1986 Electronic Privacy Act," Congressional Quarterly Weekly Report, October 11, 1986, 2558.]

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