Emails Are No Different Than Postcards So Read Freely

Email messages are like postcards that anyone can easily read, so there is no expectation of privacy when you send an email using the office computer—at least in New York.

“It is today’s reality that a reasonable expectation of internet privacy is lost, upon your affirmative keystroke,” a Criminal Court of the City of New York judge wrote. “Compound that reality with an employee’s use of his or her employer’s computer for the transmittal of non-business related messages, and the technological reality meets the legal roadway, which equals the exit of any reasonable expectation of, or right to, privacy in such communications.”

The Court threw out criminal charges of unauthorized use of a computer against a plastic surgeon who placed a keystroke tracker on a computer used by his office staff, then went into his employee’s email account and printed some of the individual’s email messages. “Although the allegations state the defendant installed keystroke-tracking software and was seen accessing an email account, they fail to sufficiently support the claim that defendant’s access was without authorization, inasmuch as (1) defendant owned the computer and (2) the email ownership is unstated. Accordingly, this court finds the allegations, herein, fail to support that defendant’s access was unauthorized or that defendant was on notice that access was unauthorized.”

The court observed that while “some may view emails as tantamount to a postal letter which is afforded some level of privacy, this court finds, in general, emails are more akin to a postcard, as they are less secure and can easily be viewed by a passerby.” The court said the criminal statute was enacted to “criminalize computer intrusions where the owner of the computer or service had sufficiently set forth protections or policies to avoid unauthorized access.” Thus, the court found, the statute “was not intended to criminalize ‘mere use or access,’ but rather to protect against knowing intrusions.” Since the prosecution did not allege that the defendant exceeded his authorized access, the state failed to allege any violation of the statute.

State v. Andrew Klapper, 2010 NY Slip Op 20150, decided April 28, 2010.