Disclosure And Expectation Of Privacy

Deciding whether personal information and communications are liable to disclosure can be contentious. Whilst common law and the Fourth Amendment protect the right to privacy courts have demonstrated that in instances involving communication to mass audiences such as social media sites there is no reasonable expectation of privacy.

As technology evolves and devices for communication become more sophisticated what may be considered private communications are leaving discoverable electronic trails. The courts have to consider whether these trails are in fact discoverable or lie within the bounds of the expectation of privacy.

In a recent case the Supreme Court, without answering directly the question of the reasonable expectation of privacy in electronic communications indicated that two relevant factors come into play; the existence of written policies that address the disclosure of stored information and social norms.

Courts are having to decide each case on its merits in the absence of a formal ruling dealing with the issues concerning the expectation of privacy of communications that are stored and transmitted by a third party. A district court upheld the issuance of a subpoena pursuant to the Stored Communications Act for information maintained by Twitter after analyzing internet communications and the fact that all Twitter users have to disclose their IP address and sign a privacy policy that allow. Twitter to disclose information when required to by law.

The court also decided that even if a reasonable expectation of privacy existed then disclosure to a third party had negated the claims to privacy. According to the Supreme Court there can be no reasonable expectation of privacy where an individual discloses information to a third party as a condition of using a service.

Twitter users rely on internet technology which, according to the court, indicates an intention to relinquish control of the information necessary to complete the communication. Reasonable expectation of privacy of the IP address is not possible under the Fourth Amendment as communication over the internet involves the destination computer and intermediary computers having knowledge of the IP address so rendering that communication possible.

Even if there can be no reasonable expectation of privacy in information transmitted to a service provider when communicating to another individual or entity the contents of the communication could be private depending upon whom else has access to the message.

The contents of emails stored with or sent or received through a commercial Internet Service Provider hold a reasonable expectation of privacy that is not relinquished by the accessibility of the communication by a third party. A reasonable expectation of privacy may not exist if others have access to the content of the communication such as emails sent over a company server when the sender had been informed that communications were liable to be read or otherwise monitored.

There can be four factors affecting reasonable expectation of privacy in instances of personal communications through employer owned devices. Is there a policy in place that bans personal use? Is the employee’s computer and/or email monitored by the company? Do third parties have access to the employee’s computer and/or email? Was the employee notified or otherwise made aware of any policy regarding the use of monitoring practices on behalf of the employer?

Reasonable expectation of privacy in emails sent by an employee from a personal email address on a device provided by the employer has been found by at least one court. The employee in question used a password protected personal email account to send personal emails and this coupled with the employers policy of allowing personal emails to be sent via the company devices created a reasonable expectation of privacy.

With the many electronic means of communication available today it is difficult to predict which will be accessible in the view of the courts. Potentially relevant information on severs or storage facilities will be susceptible to investigators who have the technical ability to follow the electronic trails. It is difficult to anticipate where access to information will be granted and where privacy will take precedence and each case will have to be determined by the courts after a detailed analysis of the use of the technology involved and the notices of policy provided to the senders of the communications.