A recent article by the Electronic Frontier Foundation indicates that Gov. Sarah Palin’s e-mail hacker may be difficult to prosecute due to current disagreements on the interpretation of the term “electronic storage”. The Stored Communications Act (SCA) indicates that protection includes all e-mail stored on electronic devices or in electronic communications, however the Department of Justice (DOJ) has disagreed, indicating a far more lenient interpretation of what email is protected.

According to the Stored Communications Act (SCA) electronic storage, which is protected under privacy laws, is defined as “any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof.” In otherwords, both opened and unopened e-mails residing on electronic storage devices or electronic communication devices would be protected.

The DOJ, however, disagrees with this definition of electronic storage, thus muddling the privacy question. According to this report, the DOJ has argued:

If the recipient chooses to retain a copy of the communication on the service provider’s system, the retained copy is no longer in “electronic storage” because it is no longer in “temporary, intermediate storage … incidental to … electronic transmission,” and neither is it a backup of such a communication.

In other words, if you read an e-mail but do not delete it, it is no longer protected under privacy laws as it is no longer considered “in storage” and protected by the SCA. In this case, since the hacker opened emails already opened by Gov. Palin but not deleted, the DOJ may not be able to easily prosecute for privacy violoations.

Now as much as I disagree with the use of private e-mail for government business as a way to side-step the law, I disagree that a person’s right to privacy ends once they have opened an e-mail. This would mean that most everyone’s e-mail is legally up for grabs by anyone who can get access to them, so long as they are already opened.

It seems pretty obvious that given the nature of our digital world, breaking into an e-mail account should be no different than breaking into someone’s office to go through their snail mail.

But it does bring up one significant issue about use of personal email for government business. Had Palin been using her government account for these correspondances like she should have, it is highly unlikely that someone would have been able to hack that account.

Sometimes crime just doesn’t pay huh.