Privacy, and the protection of individual privacy, is a right that has long been tied into our Fourth Amendment rights, which protect us against unreasonable search and seizure. However, the right to privacy has become increasingly difficult to define and defend with the advent of modern communications technology.
Cell phones, the Internet, email—all of these new mediums have made it difficult to distinguish between “public” and “private” space, and the establishment of the Electronic Communications Privacy Act has only just begun to define those boundaries. It is from this confusion that shared privacy has been created.
What Is Considered an Electronic Communication?
This act defines electronic communication as any data (writing, image, or other information) transmitted through a wire, radio, electromagnetic, or electronic system. This can include but is not exclusive to phone calls, emails, and other communications via the Internet.
How Does the Act Protect My Private Electronic Communications?
In essence, it protects Internet users by prohibiting other people and the federal government from listening in on their private communications. If they do, they cannot disclose the contents to anyone else.
Are There Any Exceptions to this Protection of Privacy?
Privacy protections are subject to many exceptions:
- If a warrant is obtained, government officials can intercept and obtain information from electronic communications
- Electronic communications can be viewed by Internet service providers (ISPs) if they suspect the sender is trying to damage the system.
- To maintain customer service, ISPs can also view electronic communication
- The ISP may view and disclose the communication to the proper authorities if the communication appears to involve the commission of a crime
- This law does not protect communications that are already readily available to the public. It could refer to chat rooms or other types of forums where anyone can converse with each other. These types of communications can be viewed and saved by anyone
- Communication is not protected by law if the individual initiating it consents to have it intercepted. In the workplace, employers may monitor employee emails under an employment contract or when customers sign membership agreements on the Internet
What Is “Shared Privacy?”
“Shared privacy” refers to private information that is not exclusive. Private emails between husbands and their lovers are sent on a family computer, or IM logs are saved on a public library terminal. The boundaries of privacy are blurred here.
While the information itself is “private” information—information that would normally be protected under the Privacy Act—the fact that it is present in a shared location (public computer, the family cell phone, etc.) makes it private information that belongs to more than one person. The privacy is “shared.”
What Protections Does the Privacy Act Offer?
By law, the federal government cannot collect information that it does not have a legal use for from an individual’s private records. A federal agency, such as the FBI, does not have the right to know every aspect of an individual’s life but only the information necessary to carry out its proper legal functions.
What Kind of Records Are Protected Under this Act?
A record is defined under this act as any information collected by a government agency that contains identifying numbers, symbols, or items that can be used to identify an individual, such as education, medical history, financial transactions, previous employment, or criminal acts.
When Can a Government Agency Use an Individual’s Record Under This Act?
An individual’s private records cannot be disclosed to a federal agency unless the individual has given written consent.
This rule has some exceptions:
- Essential to the function of an agency: For example, the Social Security Administration’s knowledge of every citizen’s social security number
- For law enforcement purposes: An agency generally does not need to ask the individual to use this information, though they may need some form of a legal process like a warrant to obtain that information (depending on what kind of information it is)
- Protect the health and safety of an individual: May use that information without prior consent from the individual
What Should I Do if I Feel My Rights Under the Privacy Act Have Been Violated by a Federal Agency?
Violations of this Act carry criminal charges as well as civil damages.
If you feel your rights have been violated under the Privacy Act, you may want to consult a government lawyer.
A lawyer can inform you of your rights, help you file a complaint against the specific government agency that violated your privacy, and determine if you are entitled to monetary damages.
Shared Privacy and “Fault” Divorces
When people who share privacy enter a conflict, shared privacy becomes problematic. In the case of divorce, the boundaries of shared privacy are often stretched to their limits.
The boundaries between shared and unshared privacy in a marriage are not currently regulated by law. And in a “fault” divorce, where one party is trying to gain the upper hand, it is difficult to determine which text messages, voicemails, emails, and other types of electronic evidence can be used in court.
What Is Electronic Evidence?
The term “electronic evidence” refers to any electronically stored information (ESI) that can be used as evidence in a trial or a lawsuit.
There are several types of electronic evidence:
- Emails; or
- Other files that are stored electronically.
Moreover, electronic evidence includes records stored by Internet or network service providers.
What Laws Govern Electronic Evidence?
There are two major sources of laws that govern the collection of electronic evidence, which include the Fourth Amendment and statutory privacy laws. The Fourth Amendment protects individual privacy interests by prohibiting unreasonable searches and seizures.
According to the Fourth Amendment, law enforcement can seize and search an individual’s computer if law enforcement has a valid search warrant. A valid search warrant allows law enforcement to take an individual’s personal computer and search it.
In some cases, law enforcement may search an individual’s computer for incriminating evidence without a warrant. This type of warrantless search is constitutional if there is no reasonable expectation of privacy or an exception exists.
In My Marriage, What Information Qualifies as “Shared?”
In general, shared privacy items are those that both partners have access to regularly. For example, shared email accounts, cell phones, and family computers would likely qualify as “shared privacy” sources. When a spouse shares a password with their partner, even normally private information may be admissible.
Think of it this way: if it is necessary to “break into” an account or device in order to obtain information, then that information will almost always be suppressed (it will be unusable in court).
Keep your password private if you have information you want to keep private from your spouse.
Remember which territory is exclusively yours. In many cases, it is legal for your spouse to track or bug the vehicle you are driving. Most cases aren’t that extreme, but it’s wise to know your boundaries, especially if divorce is imminent.
How Can I Protect My Shared Privacy? Do I Need a Lawyer?
Hiring a lawyer when dealing with gray-area issues like shared privacy is especially important. In the case of a divorce with shared-privacy issues, it would be advisable to speak to a divorce lawyer. Consider consulting a constitutional attorney if your shared privacy issues do not relate to a romantic relationship.