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Electronic mail, or e-mail, developed as part of the revolution in high-tech communications during the mid 1980s. Although statistics about the number of e-mail users is often difficult to compute, the total number of person-to-person e-mails delivered each day has been estimated at more than ten billion in North America and 16 billion worldwide. Faster and cheaper than traditional mail, this correspondence is commonly sent over office networks, through many national services, and across the Internet.

E-mail is less secure than traditional mail, even though federal law protects e-mail from unauthorized tampering and interception. Under the Electronic Communications Privacy Act of 1986 (ECPA), Pub. L. No. 99-508, 100 Stat. 1848, third parties are forbidden to read private e-mail. However, a loophole in the ECPA that allows employers to read their workers' e-mail has proven especially controversial. It has provoked several lawsuits and has produced legislative and extralegal proposals to increase e-mail privacy.

Congress intended to increase privacy by passing the ECPA. Lawmakers took note of increasingly popular communications devices that were readily susceptible to eavesdropping—cellular telephones, pagers, satellite dishes, and e-mail. The law updated existing federal criminal codes in order to qualify these emerging technologies for constitutional protection under the Fourth Amendment. In the case of e-mail, Congress gave it most of the protection already accorded by law to traditional mail. Just as postal employees may not divulge information about private mail to third parties, neither may e-mail services. The law provides criminal and civil penalties for violators: In cases of third-party interception, it establishes fines of up to $5,000 and prison sentences of up to six months. In cases of industrial espionage—where privacy is invaded for purposes of commercial advantage, malicious destruction, or private commercial gain—it establishes fines of up to $250,000 and prison sentences of up to one year.

Commentators have noted that cases involving employers reading their employees' e-mails tend to favor the employers, especially where the employer owns the equipment that stores the e-mail. Many companies also provide written policies regarding the ownership of stored e-mail messages, indicating whether the employer considers stored e-mail to be the property of the employer.

E-mail raises additional issues of privacy in the context of communications between an attorney and client. Because communications between attorney and client must remain confidential, questions have arisen about whether sending unencrypted e-mail messages by attorneys to clients could pose ethical problems. In 1999, the American Bar Association issued its opinion that the mere use of unencrypted messages does not pose ethical problems.

E-mail raises some evidentiary problems as well. Commentators have noted that the origin of some e-mail messages might be difficult to authenticate, while messages might constitute Hearsay. Nevertheless, many courts have admitted e-mail messages into evidence. To protect against disclosure of private or sensitive information, some attorneys advise employers and employees to exercise caution with e-mail, as it can be subpoenaed. Some experts have advised users to delete their e-mail regularly, and even to avoid saving it in the first place. Still others advocate the use of encryption software, which scrambles messages and makes them unreadable without a digital password.

Further readings

"Harris, Micalyn S. 2002. "Is Email Privacy an Oxymoron? Meeting the Challenge of Formulating a Company Email Policy." Saint John's Journal of Legal Commentary 553.

"Joseph, Gregory P. 2003. "Internet and Email Evidence." ALI-ABA Course of Study.

Pearlstein, Mark W. and Jonathan D. Twombly. 2002. "Cell Phones, Email, and Confidential Communications: Protecting Your Client's Confidences." Boston Bar Journal 20.

References in periodicals archive ?
The Electronic Messaging Association (EMA) was founded in 1983 (originally as the Electronic Mail Association) by eight companies that saw the potential of electronic messaging to propel business into the 21st century.
Accordance Corporation, based in Lexington, MA, is in business to provide strategic technology to the electronic messaging industry.
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Sprint made the announcement at the European Electronic Messaging Association Conference, currently underway.
Sprint Business Telecommunications Company will also provide BTC's domestic electronic messaging services -- ICASMAIL -- and will link the service with the SprintMail global electronic messaging network via SprintNet and the X.
WASHINGTON, March 10 /PRNewswire/ -- Motorola (NYSE: MOT) today announced an agreement with Pacific Bell that allows portable computer users to receive wireless electronic mail from users of Pacific Bell(R) Connection, the company's electronic messaging service.
The card, which is designed to authenticate both personnel and data transmissions, was developed under contract to the National Ins DES and the latest digital signature technology to help meet the need for increased privacy protection that has accompanied the growing use of electronic mail, facsimile and other electronic messaging technology.
Executives will find important, sensible information and genuine assistance with electronic messaging deployments in this resource library," said Charles Kolodgy, research director, IDC.
10 /PRNewswire/ -- Sprint (NYSE: FON) today announced that it will provide a nationwide packet-switched data network and Telemail-brand electronic messaging systems to the Chinese Ministry of Railways (MOR).
The policy-based electronic message archiving solution allows companies to cost effectively preserve their email and other electronic messaging assets, meet regulatory and compliance requirements, increase disaster preparedness, allow better inbox management and lower the administration costs of email.
10 /PRNewswire/ -- Sprint (NYSE: FON) today announced that it will provide three Telemail-brand electronic messaging systems to the Guangdong Post and Telecommunications Administration Bureau.

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