In case further proof were needed that we’re long overdue for an update of our digital privacy laws, the South Carolina Supreme Court has just ruled that e-mails stored remotely by a provider like Yahoo! or Gmail are not communications in “electronic storage” for the purposes of the Stored Communications Act, and therefore not entitled to the heightened protections of that statute.
There are, fortunately, other statutes barring unauthorized access to people’s accounts, and one appellate court has ruled that e-mail is at least sometimes protected from government intrusion by the Fourth Amendment, independently of what any statute says. But given the variety of different types of electronic communication services that exist in 2012, nobody should feel too confident that the courts will be prepared to generalize that logic. It is depressingly easy, for example, to imagine a court ruling that users of a service like Gmail, whose letters will be scanned by Google’s computers to automatically deliver tailored advertisements, have therefore waived the “reasonable expectation of privacy” that confers Fourth Amendment protection. Indeed, the Justice Department has consistently opposed proposals to clearly require a warrant for scrutinizing electronic communications, arguing that it should often be able to snoop through citizens’ digital correspondence based on a mere subpoena or a showing of “relevance” to a court.
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