Email and Privacy and how Cyber Law Protects User Rights - Research Paper Example

?Introduction After the discovery of the internet, electronic communication has rapidly evolved and hence the internet has grown to a complete unregulated and an unplanned phenomenon. The inventors of the internet and the World Wide Web never anticipated that it could lead to extreme undesirable consequences (Bazelon, 2001). The growth rate of the internet has been expanding at an alarming rate where recent studies indicate that the population of internet users is doubling after every three months due to the emergence of social sites as well as development of e-commerce. Many people are turning to electronic means of communication being offered by the internet, especially e-mails which can pass, store, and retrieve information from a database provide by an Internet Service Provider (ISP). However, as the internet becomes more useful day after day, it has been blamed on various sandals of money laundering, moral decay, as well as several legal issues related to privacy and hence the emergence of cyber laws which contain all the regulatory and legal aspects of the world wide web and the internet(Bazelon, 2001). Outline In this case study we are going to analyze three court cases related to e-mail privacy and the protection that the cyber laws have offered to the users. The Fourth Amendment of the United States Constitution deals with the issues concerning searches and seizures which may in one way or the other compromise an individual’s privacy and one case that involved such a violation was United States v. Warshak (Trout, 2010). Warshak was enjoying the reasonable expectation of privacy of his e-mails from his Internet Service Provider, Nu Vox until government agents compromised his rights by ordering the ISP to preserve and issue his emails without first obtaining a warrant which was to be based on probable cause, thus in accordance to the Fourth Amendment, the government agents had violated the privacy rights of Warshak. However, the agents depended on good faith with reference to the Stored Communications Act even though this exclusionary rule was not applicable in such a case (Trout, 2010). In another case involving United States v. Bynum, Mr. Bynum gave his information with the expectation that ISP would protect the privacy of his internet and phone subscriber information. However the internet service provider violated the Fourth Amendments by releasing personal information of Mr. Bynum to the FBI without them first obtaining subpoenas (Schwartz, 2009). Another similar case involved the U.S v. Councilman, in this particular scenario Councilman retained his client’s personal information especially his competitors through Wiretap in violation of the Wiretap Act. The interception and seizure without consent of his customers was contravention of the Fourth Amendment. Thus there was an urgent need to amend the Wiretap Act to have a broad definition of the word “intercept” to include electronic communication temporary in transit because the previous definition only encompassed the e-mails on electronic storage in computers. Congress amended the definition on 22nd July 2004 (Bazelon, 2001). Discussion During the case of United States v. Bynum, 08-4207, the court failed to accept the argument from the defendant that the use of subpoenas by the government in an effort to get subscribers information from his ISP was a violation of the Fourth Amendment rights of privacy (Trout, 2010). The court ruled that there was lack of evidence that “…the defendant had a subjective expectation of privacy in his internet and phone subscriber information…” Later he voluntarily accepted that he had freely given his personal data to his ISP and phone company and as a consequence, he had assumed the risk that theses companies could reveal his information to the authorities without his jurisdiction (Trout, 2010). Additionally, the court noted that Bynum was capable of demonstrating a subjective expectation of privacy with regard to this information, and then the information was subject to reasonableness test. Further the court identified that “…every federal court to address this issue has held that the subscriber information provided to the internet provider was not protected by the Fourth Amendment’s privacy expectation…” The court also argued that the defendant had failed to allege privacy interest of his IP address that had been obtained from Yahoo by the FBI (Trout, 2010). As a result the FBI issued a subpoena to yahoo’s administration requesting for subscriber information plus the IP address which were connected to the profile of Bynum after they had discovered that there was someone with similar information who was uploading restricted child pornography on his Yahoo chat room account (Schwartz, 2009). The FBI had identified the Internet Service Provider (ISP) associated with Bynum’s IP address as UUNET and hence they obtained the telephone number and email address from Yahoo! Eventually, the FBI issued subpoena’s to both the internet provider and phone companies which were running the dial-up services that were used by Bynum and this additionally revealed the physical address of the uploads that were uploaded on the internet; and this happened to be the mother’s house of the defendant. Further, the FBI quickly and easily accessed all the information on the Yahoo’s chat such as his profile, interests, photo, and other demographic information (Schwartz, 2009). The ease with which the FBI had access to private information through ISPs using IP address has raised a lot of questions. For example, is my privacy being protected while I am using the proxy server or any other system which protects my IP address and other additional information that can be retrieved as a result of the fact that an individual has visited the website? What are the consequences on the privacy of your web browsing while using gateway browsers provided by a variety of sites like ninjacloak.com among others? A proxy server receives a request from the client who wishes to access certain information online through the proxy, and then the proxy accepts the information and sends this it to the destination which the client wants to view without creating a connection between the client and the material he/she is wishing to access (Trout, 2010). However, even though the terms and conditions that have been set by the federal case laws show that there isn’t any genuine expectation of privacy for internet service records but some states have enacted stringent measures in an effort to protect the privacy of internet users. In New Jersey, the constitution of the state does not permit the disclosure any of any internet user information without a subpoena from the grand jury. The IP security issue in this state is based on the constitutional rights to privacy and the identity of the IP is sufficient to offer some security to the user (Schwartz, 2009). During the month of December, 14, 2010; the 6th Circuit concluded that a search warrant is a prerequisite prior to conducting any search and seizure of emails which are stored by an Internet service Provider. The United States government had directed that “…without a warrant for probable cause…” an ISP provider save all the emails of Steven Warshak who was under investigation for massive fraud and electronic money laundering. Warshak was the owner of Berkely Premium Nutraceuticals, Inc which was an incredibly profitable company and had the patent for distributing Enzyte, a supplement that was believed to be enhancing male sexual performance. In the case United States v. Warshak, the defendants were; Steven Washak, Harriet Warshak (his mother), and TCI media Inc where they challenged their convictions which involved a massive scheme to defraud Berkeley’s customers (Trout, 2010). The product Enzyte was the flagship of the company and it was supposed to double a man’s erection power; the product became popular and the sales rose dramatically. However, after some time the company launched a call center that operated 24 hours where customers could call and order their products through telephone or email. Massive bogus advertisement campaigns were also implemented and the auto-ship program which was implemented in 2001, this was a program that once the customer was enrolled, he would regularly receive shipments until he/she opted out and a corresponding charge would appear on his/her credit-card statement. Most of the customers were enrolled without their knowledge as no authorization was obtained from them and this led to a lot of complains that led to withdrawal of various merchant banks from the scheme due to increased complaints of charge backs but Warshak devised a scheme to overcome this. It was until the government confiscated his e-mails that they discovered what was happening (Bazelon, 2001). Warshak argued that it was warrantless for the government to seize the approximated 27000 private emails as it was a violation of the Fourth Amendment, which prohibits unreasonable searches and seizures but the government responded by arguing that if its agents had violated the Fourth Amendment by obtaining the emails then it was not wrong under the Stored Communications Act. This statute gives the government the liberty to get some specific electronic information without even procuring a search warrant and hence the violation of the Fourth Amendment was hypothetical and harmless. In real sense the government did violate Warshak’s privacy by instructing his ISP to preserve and turn over his emails but however we observe that the government agents acted in accordance with SCA’s good faith and hence the reverse was not warranted (Schwartz, 2009). The Stored Communications Act (SCA) states that “…the government is permitted to compel any service provider to disclose the contents of electronic communications in certain circumstances (Trout, 2010). The provisions of compelled-disclosure offers a variety of levels of protection and this is based on the grounds of whether the email is preserved in form of electronic communication or as a remote computing service in addition to the period in which the email has been preserved in form of electronic storage. The government is allowed to obtain the contents of an email which has been stored electronically by an electronic communication service for a period of 180 days or less only on condition there is a pursuant of a warrant. The government has been granted three options with which it can implement to obtain information from a remote computing service and communications which have been stored electronically for a period exceeding 180 days. They include: Obtaining a warrant, Using an administrative subpoena and, Obtaining a court order (Trout, 2010). Recent research has proven that not all actions from the government are sufficiently intrusive enough to violate the Fourth Amendment protection since it is based on an occurrence of a search whose legal definition history has been marred by several complexities. A search occurs when the government violates an expectation of reasonable privacy from the society. Warshak expected his emails to be subjected to some privacy since his personal life and entire business was confined within the emails that were seized by the government agents and thus he didn’t expect them to be made public hence he had a subjective expectation of privacy of the information contained in his e-mails (Bazelon, 2001). Further, we can question on what the society considers as a reasonable expectation assuming the roles that have been taken by emails as a modern mode of communication. After the invention of the email as a mode of communication, the use of letters and the telephone has reduced and they have been replaced by internet-based means of communication. Individuals are now capable of relaying intimate and sensitive information throughout the world to friends, relatives, and even business associates but the problem lies on the confidentiality and privacy of the information. E-commerce has enabled businessmen to advertise and sell their products online as well as receive their funds. Emails have been used frequently to remind clients and patients about their appointments and thus by gaining the access to a person’s email, then government agents and other third parties are capable of scrutinizing your activities hence the call for email privacy and most of this fact is based on whether the government is allowed to request information from an ISP without violating the Fourth Amendment (Schwartz, 2009). On the 5th of October 2004 a case between the U.S v. Councilman was decided by the Federal Court of Appeal of the first circuit to be heard again overturning an earlier decision that internet service providers had not abused the Wiretap Act through tapping user’s email information without their consent. The decision of the court was vacated awaiting rehearing because it was very controversial and due to the fact that it received global condemnation and criticism (Edgar, 2006). Most of the concerns advanced were that the decision violated the rights of privacy because it lacked the prerequisite to have subpoena obtain before any email contents were taped. EFF, which deals with protection of freedom of speech and right to privacy in the electronic media, was in the forefront leading the opposition to the decision and it applied to the court to be granted a friend-of-the-court brief asking the court to rehear the case afresh. The court allowed the motion to rehear the case. As observed by the EFF the decision in the Councilman case had great ramification which congress had not foreseen regarding the rights to privacy in the World Wide Web as to the law of internet surveillance (Edgar, 2006). The decision according to the EFF would create loopholes which the governments would use to infringe right to privacy and in addition the interpretation by the court that majority of internet wiretaps are not regulated by Wiretap Act but by the Stored Communication Act, could have the latter be regarded as unconstitutional for failing to offer protection against unauthorized search and seizure of information under the Fourth Amendments right to privacy (Schwartz, 2009). This case was of a company called interlock (Alibris), whose core business was sale of used and rare books. It used to transact its business online and it also offered internet services at the same time to its customers. In 1998 from the authority of Mr. Councilman who was the CEO, intercepted and seized emails contents of its clients mostly from its rival firm, Amazon.com (Schachter, 2002). The company did not have consent from these customers to have such information and from which huge business gains would be realized. Mr. Councilman was sued for “illegal wiretap” under the Wiretap Act. He was discharged of the charges and the Federal court of Appeal affirmed the decision. The court held that Mr. Councilman did not infringe the Wiretap Act since interception of email content can only occur when the message is “in transit” but for this scenario the interception occurred when the messages were already in the electronic storage in the firm’s computers. The court when deciding the case observed the decision removed certain protections which fall under the Wiretap Act since the Act was rendered outdated by technological advancement over the years thus the need to for amendments by congress (Trout, 2010). Judge Lipez giving the minority opinion observed that majority opinion would override gains made by the Wiretap Act over the years and would make the Act obsolete in protecting electronic privacy. In his submission he held that Wiretap Act was applicable both to electronic messages and when the messages are in electronic storage. In his opinion courts would offer e-mail contents protection under the Wiretap Act only when they are in cables and not when they are being processed by computers or in transit and delivery (Schwartz, 2009). The decision would, as observe by various sections of the world, bring a precedence that it would be okay for internet service providers to supervise and access to their client’s e-mails without their permission. It would also permit the government to seek warrants to intercept e-mails without obtaining subpoena which is the very important prerequisite for interception of such e-mails. In addition this decision threaten the privacy of electronic messages thus rendering them less secure than telephone calls and for this reason many people opposed the decision ( Schwartz, 2009). Congress was under pressure to have legislative motions to overturn the decision and have electronic messages accorded similar protection to the existing ones with regard to telephone call. The interpretation of the word “intercept” was given a wide definition to include electronic communications which are stored temporary at any given time while been transmitted. This was according to a bill tabled in the House of Representative on 22nd of July 2004 (Bazelon, 2001). References Bazelon, L. (2001). Probing Privacy, Gozanga Law Review, 12(4), 587-619. Edgar, S. (2006). Morality and Machines: Perspectives on Computer Ethics, Jones & Bartlett Learning Schachter, M. (2002). Law of Internet Speech, Carolina Academic Press Schwartz, P. (2009). Privacy, Information and Technology, Aspen Trout, B. (2010): Cyber Law: A legal Arsenal for Online Business, World Audience Read More