Email and the Law

Fourth Amendment to the Constitution

if email resides on a sender’s or recipients computer,
- then laws govern the seizure and collection of the message
determine if the user has a reasonable expectation of privacy on that computer
need a search warrant
- unless exceptions apply (e.g., consent)

if ISP or other communications network stores an email,
- retrieval of that evidence must be analyzed under the ECPA
ECPA creates statutory restrictions on government access to information from ISPs or other communications providers
requires different legal processes to obtain specific types of information:
- basic subscriber information
  - this info includes
    - name
    - address
    - billing information including
      - credit card number
      - telephone toll billing records
      - subscriber’s telephone number
      - type of service
      - length of service
  - can obtain this info with a subpoena, court order, or search warrant
- transactional information
  - includes
    - websites visited
    - email addresses of other with whom subscriber exchanged email
    - buddy lists
  - can obtain this info with a court order or search warrant
- content information
  - can obtain this info with a search warrant
- real-time access
  - to intercept traffic in real-time, need a wiretap order

meant to curtail unsolicited email
- aka spam
has many loopholes
- e.g.,
  - do not need permission before sending an email
    - thus unsolicited email is not prohibited
  - applies only to commercial emails
    - trying to sell a product or service
    - does not apply to mass emails for political, religious, or ideological purposes
law defines commercial email as “any electronic mail message the primary purpose of which is the commercial advertisement of promotion of a commercial product or service (including content on an internet website operated for a commercial purpose)”
requires sender to provide a mechanism to opt out of future emails
- must meet guidelines:
  - visible and operable unsubscribe mechanism present in all emails
  - cannot cost money
  - opt-out requests are honored within 10 days
  - opt-out lists cannot be sold to other vendors/senders
restrictions on how the sender can acquire emails and send emails
- message cannot be sent through an open relay
- message cannot be sent to a harvested email address
- message cannot contain a false header

prohibits the use of misleading domains to deceive a person into viewing material constituting obscenity

is a wiretapping law
allows law enforcement and intelligence agencies to lawfully conduct electronic surveillance
requires telecommunications equipment manufacturers to modify and design equipment, facilities, and services to ensure they have built-in surveillance capabilities
allowing federal agencies to monitor all telephone, broadband internet, and VoIP traffic

prescribes procedures for the physical and electronic surveillance and collection of “foreign intelligence information”

reduced restrictions on law enforcement agencies’ gathering of intelligence within the United States
expanded Secretary of the Treasury’s authority to regulate financial transactions
broadened discretion of law enforcement and immigration authorities in detaining and/or deporting immigrants suspected of terrorism and related acts
expanded the definition of terrorism to include domestic terrorism