Electronic Privacy Laws: What’s Allowed and What Isn’t

The law of privacy in electronic communications is notorious for its lack of clarity. This is evidenced by the lack of a uniform interpretation of this law by the various federal courts. However, there are some general guidelines to keep in mind when faced with the question of whether you are committing a violation of the ECPA. The first and most basic principle underlying this law is the concept of a “justifiable expectation of privacy.” A justifiable expectation of privacy must accompany the communication in order for a violation of the ECPA to occur. In most cases, it is not hard to imagine which communications involve an expectation of privacy exists. For example, a reasonable person is justified in expecting his/her telephone calls to be private. However, a reasonable person would not consider a message placed on a bulletin board in the county courthouse to be private. This principle can be extended to each type of electronic communication. Most people would consider an email message to be private. The software for accessing such messages requires a password, which is a good indication of the expectation of privacy. However, a joint email account where spouses share the service and are both aware of the password, would probably not be deemed to be private. Another gray area in applying this law concerns chat rooms. Many chat rooms are restricted to those who “register” for the service. However, the fact that access is limited to those who register does not necessarily mean that the discussions are justifiably expected to be private. On the other hand, some chat rooms are private and only available to those with a password.