Can a Computer Intercept Your Email?

Bruce E. Boyden

Marquette University - Law School

March 26, 2012

Cardozo Law Review, Vol. 34, No. 2, 2012
Marquette Law School Legal Studies Paper No. 12-05

In recent years it has become feasible for computers to rapidly scan the contents of large amounts of communications traffic to identify certain characteristics of those messages: that they are spam, contain malware, discuss various products or services, are written in a particular dialect, contain copyright-infringing files, or discuss symptoms of particular diseases. There is a wide variety of potential uses for this technology, such as research, filtering, or advertising. But the legal status of automated processing, if it is done without advance consent, is unclear. Where it results in the disclosure of the contents of a message to others, that clearly violates the federal law governing communications privacy, the Electronic Communications Privacy Act (ECPA). But what if no record of the contents of the communication is ever made? Does it violate communications privacy simply to have a computer scan emails?

I argue that automated processing that leaves no record of the contents of a communication does not violate the ECPA, because it does not “intercept” that communication within the meaning of the Act. The history, purpose, and judicial interpretation of the ECPA all support this reading: interception requires at least the potential for human awareness of the contents. Furthermore, this is not simply an accident of drafting, an omission due to the limited foresight of legislators. Under most theories of privacy, automated processing does not harm privacy. Automated processing may in some cases lead to harm, but those harms are not, in fact, privacy harms, and should be analyzed instead under other legal regimes better adapted to dealing with such issues.

Number of Pages in PDF File: 49

Keywords: email, Electronic Communications Privacy Act, automated scanning, automated processing, surveillance, privacy, Wiretap Act

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Date posted: March 27, 2012 ; Last revised: January 2, 2013

Suggested Citation

Boyden, Bruce E., Can a Computer Intercept Your Email? (March 26, 2012). Cardozo Law Review, Vol. 34, No. 2, 2012; Marquette Law School Legal Studies Paper No. 12-05. Available at SSRN: https://ssrn.com/abstract=2028980 or http://dx.doi.org/10.2139/ssrn.2028980

Contact Information

Bruce E. Boyden (Contact Author)
Marquette University - Law School ( email )
Eckstein Hall
P.O. Box 1881
Milwaukee, WI 53201
United States
(414) 288-5492 (Phone)
(414) 288-6403 (Fax)
HOME PAGE: http://law.marquette.edu/cgi-bin/site.pl?10905&userID=4152
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