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The NSA: Did You Really Think Your Email Was Private?

Contact Attorney Jason Chan

Attorney Jason Chan

267 North Beacon Street, Suite 3
Boston MA 01235

Phone: 781-343-1DUI (781-343-1384)
Fax: 617-226-7986

“To be left alone is the most precious thing one can ask of the modern world,” said Anthony Burgess (a well-known British novelist) back in 1986.  The same holds true in 2013.  Yet privacy is even more elusive today with technology and social media at everyone’s fingertips.  Add to that the government’s need to protect its citizens from terrorists hiding among us, and privacy may be merely a fond wish.

A recent court decision allowing the National Security Agency (NSA) to resume searches of our emails has raised concerns, such as, whether the government circumvent the privacy laws already in place and, if so, how does it justify this invasion?

Where does our right to privacy come from?

The Fourth Amendment of the United States Constitution is the cornerstone of our privacy rights and — providing all citizens with a “reasonable expectation of privacy.”  That is the standard by which most laws relating to privacy are based.  It is also the standard by which the NSA’s need to comb through private emails must also be judged.  Congressman Jim Sensenbrenner of Wisconsin had this to say on the subject:

The Fourth Amendment protects us from unreasonable searches and seizures. In the Internet-era, this should apply to email and other forms of electronic communication because it is central to our daily lives. As Americans, we have a reasonable expectation of privacy. In order to execute a search, legal procedures must be followed. Obtaining emails without going through the proper judicial channels violates the Fourth Amendment.

Emails are also protected by the Electronic Communications Privacy Act (ECPA) passed in 1986.  However, under that antiquated law, an email is only protected for 180 days, after which time a simple subpoena is all that is required.  Despite these and other protections, the NSA has for many years conducted mass searches through the emails of American citizens.  These searches violated the Fourth Amendment.

NSA privacy violations made public.

In 2005, documents were discovered which indicated that the NSA was actively collecting information from private emails without a warrant or other authorization.  Despite the fact that the NSA is prohibited from conducting surveillance on U.S. citizens, these documents uncovered approximately 56,000 instances of privacy violations occurring each year.  A group called the Electronic Frontier Foundation (EFF) has led the charge in preserving our right to privacy.  In 2006, an AT&T employee, Mark Klein, turned whistleblower and provided the EFF with evidence that his employer was assisting the NSA with illegal email surveillance.  Since that time, the EFF has filed several lawsuits challenging the government’s underground surveillance. Concerns over privacy resulted in a court-ordered, across-the-board ban of email searches by the government in 2008.  However, that is no longer in affect as a result of recent court rulings lifting that ban.

Court-sanctioned invasions of privacy?

In 2011, the Office of the Director of National Intelligence (ODNI), asked the court to lift the ban.  The ODNI’s objective is to provide a quicker and more effective method of identifying foreign intelligence communications, such as when a possible terrorist plot is suspected and conspirators need to be found.  In a time of Boston Marathon bombings, Pentagon shootings and ricin letters, this reasoning sounds compelling.  According to Gen. Keith Alexander, NSA director, these efforts have prevented 13 terrorist attacks in the United States since 9/11. Clearly, there must be a balancing act – the rights of citizens to privacy and the obligation of the government to protect those same citizens from terrorism.

The state of email privacy today.

Where does that leave us?  If we are honest, emails should never reasonably be considered “private” anyway.  Actually, they may be the least private form of communication as they are stored not only on the sender’s computer, but also on the recipient’s computer and the Internet Service Provider’s server.  They can be easily forwarded to untold numbers of other people by a click of a button.  As a senior staff attorney at EFF, Kurt Opsahl aptly said, “[i]f the director of central intelligence [David Petraeus] isn’t able to successfully keep his emails private, what chance do I have?” Not much.

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