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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 ?
Furthermore, it was left to another anonymous e-mailer to bring the rest of the Yale Law School community into the discussion.
The e-mailer wrote that he had documents, photos, and videotapes that confirmed his story, and that he was eager to send them to the company.
Set-top box maker Amstrad is to cut the price of its e-mailer plus product in a bid to boost sales.
USE the Blind Carbon Copy (BCC) feature of your e-mailer to send copies of your e-mail so everyone receiving it does not see the address of everyone else.
QUIT: See Question 1 VOTE: See Question 7 VISITOR: See Question 11 E-MAILER: Question 22 RECRUIT: Question 29
"Wrong!" said the e-mailer. "The community would have thought about God a little more if God would have taken some time off His busy schedule and stopped the shooter before he started the madness.
The site was two miles from their home; when challenged, the e-mailer had no idea of what he was frightened of, just that he had read somewhere that pathogens from composting are dangerous (which they are, in a confined space).
ZackenSnake20, an anonymous e-mailer, wants to know about "loosely defined" regions.
Instead of gloating, the e-mailer types a picture of a smiley face.
The first trial for libel by e-mail - held in Australia - concluded with a substantial fine being imposed on the offending e-mailer. In that case, an anthropologist fired by the University of Western Australia sued another anthropologist, claiming he had been defamed in a computer bulletin board message.
On behalf of Clay management, the marketing department shared a colorful e-mailer wishing everyone a safe and natural Holi.
Parents are, this week, busy trying to work out which kind of e-mailer they are thanks to a survey by Glasgow University researchers.