Clicking Away Your Right to Privacy

Featured article by Marc A. Lavaia, Partner at the law firm of Warshaw Burstein, LLP 

Before using any standard Internet service provider for e-mail (i.e., Gmail, AOL, Yahoo), you must agree to the site’s terms of use by clicking a seemingly innocuous “I Agree” button. Most users fail to actually read the terms and simply click the button without a second thought. Without knowing it, that simple act may be waiving an important Constitutional right toprivacy.

Although the U.S. Constitution does not explicitly provide individuals with a right to privacy, the U.S. Supreme Court has found an implicit right to privacy couched in the Fourth Amendment. If an individual expects certain information will remain private, and society is prepared to recognize that expectation as reasonable, then the Fourth Amendment regulates governmental investigation of that information.

The general rule regarding an individual’s right to privacy with respect to voluntarily disclosures is governed by what is known as the “third party doctrine.” The “third party doctrine” is a concept under the law where if a person voluntarily discloses information to a third party, there is no reasonable expectationto privacy concerning the disclosedinformation.

That being said, the law does recognize that disclosing information to a third party does not in all circumstances automatically permit intrusion by law enforcement. In the current digital age, Courts have accepted that in the course of carrying out mundane tasks individuals routinely reveal personal information to third partiesthrough technology, such as to your e-mail provider, and that a reasonable expectation of privacy is expected.

Despite acknowledging the challenge that technology brings to privacy issues, a recent Court casecut deeply into Fourth Amendment protections concerning e-mail communications. In that case, AOL’s right to scour an individual’s e-mails and turn them over to law enforcement was questioned where AOL suspected the emails to be criminal or to involve criminal activity. Although the Court didrecognize a general rightto privacy in e-mail communications, it went on to hold that an individual does not have a right to privacy of his or her e-mails with respect to a provider that has a terms of service agreement expressly disallowing criminal activity, and stating that the provider monitors emails for illegal activity and reserves its right to take any action it deems warranted, including sharing information and cooperating with law enforcement.

Ultimately, by agreeing to the terms of service that includes such provisions (simply clicking “I Agree”), you have consented to the monitoring of your e-mails, the disclosure of those e-mails to law enforcement, and to the waiver of your Fourth Amendmentrights.

The question remains for Courts and Legislators to decide: given the lengthy, complicated and often confusing provisions contained in a standard terms of service agreement, can atypical user of the Internet be expected to understand that by clicking “I Agree,” he or she is waiving an important Constitutional right toprivacy? And even if a user does understand the rights they are waiving, is there an alternative? Virtually all established mainstream e-mail providers require a user to agree to the same terms.

If you own or operate a business that utilizes the Internet for e-mail, it is important to take the necessary steps to protect your company’s information. Given the state of the law, care should be taken so that no e-mail can be interpreted as a communication suggesting illegal activity, thus preserving your right to privacy as to all of your e-mails.

Marc A. Lavaia is a Partner at the law firm of Warshaw Burstein, LLP in New York City and has expertise in drafting and implementing company policies and procedures to protect your business.