Email, Warrants and Corporate Email

Inside the company, you can take away your employees expectations of privacy when it comes to email. It has been unclear whether the same is true when it comes to the government inspecting your email. Surprisingly, there has been little law on whether your email would be subject to same protections as your phone calls from government snooping. Does the government need a warrant to obtain the contents of your email from your internet service provider?

The latest case to address the issue is U.S. v. Warshak out of the Sixth Circuit Court of Appeals which held:

If we accept that an email is analogous to a letter or a phone call, it is manifest that agents of the government cannot compel a commercial ISP to turn over the contents of an email without triggering the Fourth Amendment. An ISP is the intermediary that makes email communication possible. Emails must pass through an ISP’s servers to reach their intended recipient. Thus, the ISP is the functional equivalent of a post office or a telephone company. As we have discussed above, the police may not storm the post office and intercept a letter, and they are likewise forbidden from using the phone system to make a clandestine recording of a telephone call—unless they get a warrant, that is.

The case is based on charges against the manufacturer of Enzyte with its Smilin’ Bob commercials. The company got into mess of mail and wire fraud because of their sales practices and banks closing down their accounts.

The government seized 27,000 emails from the company’s internet service provider under the the Stored Communication Act (18 U.S.C. §§ 2701 et seq.), a statute that allows the government to obtain certain electronic communications without procuring a warrant. As you might expect, the company objected to this government action.

Once you become a registered investment advisers, you are going to be subject to inspection by the Securities and Exchange Commission. The SEC will likely not need a warrant for any records or communication required to be kept under the Investment Advisers Act. You can’t have an expectation of privacy for stuff you are required to submit to SEC examination.

As an employer, you own the hardware and the network and you can decide how your employees use them. If you clearly state that your employees have no expectation of privacy for email on the company’s network then you are free to dig into their email traffic as part of an internal investigation.

The Warshak case is important for criminal law, but has no effect on corporate email policies.