Emails considered “abandoned” if older than 180 days


The Electronic Communications Privacy Act – Part 1

Email Privacy

It turns out that those 30 day email retention policies I have been putting down for years may… actually be the best policy.

This may not be a surprise to some of you but the government can access your emails without a warrant by simply providing a statement (or subpoena) that the emails in question are relevant to an on-going federal case – criminal or civil.

This disturbing fact is legally justified through the misnamed Electronic Communications Privacy Act of 1986 otherwise known as 18 U.S.C. § 2510-22.

There are some stipulations to the government gaining access to your email;

    • The email must be stored on a server, or remote storage (not an individual’s computer).This obviously targets Gmail, Outlook.com, Yahoo mail and others but what about corporate email administered by third parties, what about Outlook Web Access, remote workers that VPN into their corporate email servers, PSTs saved on cloud storage…
    • The emails must have already been opened. Does Outlook auto-preview affect the state of “being read”?
    • The emails must be over 180 days old if unopened

The ECPA (remember it was written in 1986) starts with the premise that any email (electronic communication) stored on a server longer than 180 days had to be junk email and abandoned.  In addition, the assumption is that if you opened an email and left it on a “third-party” server for storage you were giving that “third-party” access to your mail and giving up any privacy interest you had which in reality is happening with several well-known email cloud providers (terms and conditions).  In 1986 the expectation was that you would download your emails to your local computer and then either delete it or print out a hard copy for record keeping.  So the rules put in place in 1986 made sense – unopened email less than 180 days old was still in transit and could be secured by the authorities only with a warrant (see below); opened email or mail stored for longer than 180 days was considered non-private or abandoned so the government could access it with a subpoena (an administrated request) – in effect, simply by asking for it.

Warrant versus Subpoena: (from Surveillance Self-Defense Web Site)

To get a warrant, investigators must go to a neutral and detached magistrate and swear to facts demonstrating that they have probable cause to conduct the search or seizure. There is probable cause to search when a truthful affidavit establishes that evidence of a crime will be probably be found in the particular place to be searched. Police suspicions or hunches aren’t enough — probable cause must be based on actual facts that would lead a reasonable person to believe that the police will find evidence of a crime.

In addition to satisfying the Fourth Amendment’s probable cause requirement, search warrants must satisfy the particularity requirement. This means that in order to get a search warrant, the police have to give the judge details about where they are going to search and what kind of evidence they are searching for. If the judge issues the search warrant, it will only authorize the police to search those particular places for those particular things.

Subpoenas are issued under a much lower standard than the probable cause standard used for search warrants. A subpoena can be used so long as there is any reasonable possibility that the materials or testimony sought will produce information relevant to the general subject of the investigation.

Subpoenas can be issued in civil or criminal cases and on behalf of government prosecutors or private litigants; often, subpoenas are merely signed by a government employee, a court clerk, or even a private attorney. In contrast, only the government can get a search warrant.

With all of the news stories about Edward Snowden and the NSA over the last year, this revelation brings up many questions for those of us in the eDiscovery, email archiving and cloud storage businesses.

In future blogs I will discuss these questions and others such as how does this effect “abandoned” email archives.

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Did you hear the one about the Attorney who thought “Social Media” was a dating website for singles over 40?


A definition of the term social media from Merriam-Webster states “forms of electronic communication (as Web sites for social networking and microblogging) through which users create online communities to share information, ideas, personal messages, and other content.”

Another definition of “social media” from online matters reads “Social media is any form of online publication or presence that allows end users to engage in multi-directional conversations in or around the content on the website.”

Examples of social media include facebook, myspace, LinkedIn, twitter, YouTube, and WordPress (free blogging site) among many, many others. Social media is not limited to desktop computers either. Cell phones, smart phones, PDAs, iPhones and iPads are popular examples of mobile devices which can be connected to social media capabilities.

How popular is social media these days?

Facebook: 750 million plus active users (July 2011). Users spend over 700 billion minutes per month on facebook.

Twitter: 175 million total Twitter accounts, 119 million Twitter accounts following one or more other accounts (March 2011) with 177 million tweets sent in one day on M arch 11, 2011

LinkedIn: 100 million users (March 2011)

Based on the above numbers, the social media phenomenon has become a major source of electronic data which in turn means a major target in litigation.

Social media content as a source of evidence in civil litigation has become a popular topic in legal magazines, blogs, twitter posts and other information sources. There are several challenges around social media content from the employee’s point of view and its use in litigation. Individuals tend to view social media content the same way they thought about emails and voicemails years ago – transitory, something that was private and didn’t exist for long anyway. People are shocked that potential employers are looking at the individual’s public facebook page, twitter postings or LinkedIn profile to get a better idea of a job candidate’s background or when police view the same content to help build a case against someone.

“Seriously officer, I wasn’t at that party where someone got shot…I was visiting my grandmother in Fresno”

“Really?… then how come there’s a picture of you at the party holding a bottle of Jack Daniels in one hand and a Glock 9mm in the other hand?”

Does an employer have a right to an employee’s social media content? Some qualifying questions to determine this  would be:

  1. Has the employee mixed personal and business related content in their social media activity?
  2. Was the employee’s social media activity initiated from within the organization’s infrastructure or using their equipment?

In a 2010 US District Court decision, Equal Employment Opportunity Commission v. Simply Storage Management, L.L.C. and O.B. Management Services, the defendant, Simply Storage, sought to discover from  two employees claiming sexual harassment against their supervisors, all photographs and videos posted to their Facebook and My Space accounts, electronic copies, or alternatively hard copies, of their profiles which includes updates, messages, wall comments, causes/groups joined, activity streams, blog entries, blurbs, comments and applications. The EEOC objected to production on the grounds that the request was overbroad, not relevant, unduly burdensome, and improperly infringed on privacy and compliance would harass and embarrass the claimants. Simply Storage defended the request arguing that the claimants’ had put their emotional health at issue implicating all their social communications.

The Court ruled that the EEOC must produce relevant Social Networking Sites (SNS) communications in accordance with its guidelines noting first that SNS content is not shielded from discovery simply because it is locked or private.

In another case, TEKsystems, Inc. v. Hammernick et al., No 0:10-cv-00819, filed in the United States District Court for the District of Minnesota, is the first-known restrictive covenant lawsuit regarding allegedly unlawful conduct via social media (in this case, LinkedIn).

When Hammernick’s employment with TEKsystems ended, she went to work for Horizontal Integration, Inc., also an IT staffing firm. The complaint alleges that, after her employment with TEKsystems ended, Hammernick unlawfully communicated, on behalf of Horizontal Integration, with at least twenty “Contract Employees” via LinkedIn, the premiere social networking website used for business and professional purposes.

The allegations against Hammernick list, by name, the sixteen Contract Employees that she allegedly “connected” with on LinkedIn, in violation of her employment agreement with TEKsystems. This case raises the legal question whether merely “connecting” with professional contacts via professional networking websites constitutes a violation of a restrictive covenant prohibiting such “solicitation” or “contact.” Does the mere existence of a network of professional contacts equal solicitation? Will compliance with a non-solicitation restriction require individuals to “disconnect” or “de-friend” colleagues, customers, or clients of former employers until the non-solicitation period expires?

Smartphones are a super highway into your private social media content

Recently, California’s Supreme Court reached a controversial 5-2 decision in People v. Diaz (PDF), holding that police officers may lawfully search mobile phones found on arrested individuals’ persons without first obtaining a search warrant. The court reasoned that mobile phones, like cigarette packs and wallets, fall under the search incident to arrest exception to the Fourth Amendment to the Constitution.

Do you have a Twitter app or LinkedIn app on your smart phone? Does it automatically enter your logon and password when you start the app? If they do then law enforcement could take a look at you private facebook, LinkedIn or Twitter accounts.

Also be aware, if you voluntarily disclose or enter your mobile phone password in response to police interrogation, any evidence of illegal activity found on (or by way of) your phone is admissible in court, regardless of whether or not you’ve been Mirandized.

Its obvious social media is a new speed bump in the eDiscovery landscape. Employers need to create policies to address their concerns and educate their employees about these policies and the consequences of not following them.