I argue that a person's privacy interest in his email is the same as his privacy interest in a telephone conversation. Moreover, the privacy interest in email remains unchanged regardless of whether it is intercepted in transmission or covertly accessed from the recipient's mailbox. If one accepts this assumption, it follows that the level of protection against surveillance by law enforcement officers should be the same[...] As technology continues to blur the distinction between wire and electronic communication, it becomes apparent that a new methodology must be developed in order to provide logical and consistent protection to private communications. The statutes must be revised so as to protect the privacy of communications while also providing a means by which law enforcement officers can obtain judicial approval to eavesdrop when necessary. Otherwise, increasing integration between data and voice communications will render the current statutory scheme arbitrary and impractical. By way of background, this article will discuss the law governing mail searches as well as the law of covert searches generally. This article will go on to discuss the regulation of pen registers, and will then trace the evolution of the relevant federal statutory and constitutional protections afforded to telephone conversations. Next, this article will discuss the statutory protections and the emerging case law addressing the privacy of email and other communication via computer. Particular emphasis will be placed on several recent federal court decisions that illustrate the problems arising from the current statutory scheme. Lastly, this article will discuss the controversial implementation of the FBI's "Carnivore" software for the purpose of surreptitiously intercepting email, and the recent deployment of a keystroke-logging device as another means of learning the contents of private electronic communications. This article asserts that the Fourth Amendment protections applicable to telephone conversations set out by Katz v. United States and Berger v. New York (subsequently codified and expanded by the Federal Wiretap Act) should be implemented more broadly to encompass the surreptitious surveillance of postal mail, email, and other promising forms of electronic communication. This article argues in favor of more uniform regulation of covert surveillance of private communications regardless of the choice of technology employed to convey the message.
Robert A. Pikowsky,
The Need for Revisions to the Law of Wiretapping and Interception of Email,
Mich. Telecomm. & Tech. L. Rev.
Available at: https://repository.law.umich.edu/mttlr/vol10/iss1/1