I can't believe that! I had written over 2000 words into this durn
textbox. I accidentally bumped the "escape" key and ERRASED it all!
Now I have to start over. My hands are getting tired.
The Answer to your question is NO! NO! and NO!
1. Your email is NOT an academic record and is NOT protected by law
in the same sense that your academic record (transcripts etc.) are
protected by law.
2. YOUR emails are NOT protected by the Federal Family Educational Rights and
Privacy Act (FERPA). Neither are your emails protected under
California law (unless something new has happened in California in the
last month or so, this is the case!)
3. There are NO court cases dealing with this specific issue. And as
I relate in the answer that follows . . . there probably won't be for
a while.
Read on . . .
When email began, it was used by the government. They had email in
the White House and the Pentagon LONG before email was being used by
the general public. (Anyone remember the Iran-Contra scandal? LtCol.
Oliver NORTH was nearly CONVICTED based upon email (and other
evidence) that he had produced. Mr. North only THOUGHT that the email
in question was 1)secure and 2) had been deleted!) The key point is:
ANYTHING involving the government or Defense Department is ALWAYS
subject to monitoring. In this settng, ALL email is the physical
PROPERTY of the U.S. Government. And Uncle Sam wants it to stay that
way.
Email later became available to large businesses who could afford
advanced, expensive computer systems. Employers provided email to
their employees because it was a cheap form of communication. It was
cheaper and much faster than letter mail. It was easy to do from the
office. And largely, that email was company wide via the company
INTRA-net that IBM (or Xerox or NCR or Honeywell or whomever) sold the
company with the multi-million dollar computer system. The managers
of the company WANTED to be able to ensure that ALL employees were
using company email for company (i.e. business) purposes. Because the
COMPANY provided the email service, the company became the legal OWNER
of the email that employees sent. There is some solid common law on
this issue. Employers get to MONITOR what their employees do at work.
That principle has fairly consistently been upheld. So early on,
there was NO pretention of email PRIVACY at any level. Your BOSS was
watching! After all, that is part of what your BOSS is supposed to
do: WATCH and SUPERVISE YOU! Although your supervisor probably could
NOT read your email, your supervisor's boss (or HIS boss) almost
certainly COULD and DID! Email was provided for business purposes.
End of story.
Colleges and Universities followed with the Internet and email
provided to faculty on the University Computer system. Again,
computers were big and email was only a small (expensive) part of a
much LARGER (even more expensive) computer system. The faculty had
email first. Long before students had email access, your college
Professors at the larger state universities had email. Such
individuals are ALSO employees. Their employer ALSO provided the
email service. Thus the email was the PHYSICAL PROPERTY of the
University providing the email service. As such, email was (and is)
subject to monitoring. End of Story.
With the advent of the Internet, things get more complicated. People
who pay MONEY to use the internet have a reasonable expectation of
privacy where their email is concerned. Google (whom I love) and
Yahoo (whom I also love -- but less so) and Hotmail (whom I ignore)
all deal with privacy issues in the same general way. One day READ
the "terms of use" and "Privacy policy" that are provided as a
condition of your email service. As a legal matter, those POLICIES
are generally interpreted to the benefit of the service provider.
Those POLICIES are NOT a contract in the same sense as most people
think.
If you borrow money, the documents you sign (when you buy the car or
whatever) constitute a LEGAL CONTRACT. That CONTRACT spells out what
YOU agree to do and what the FINANCE COMPANY agrees to do. Page after
Page after Page of fine print contains language that the COURTS have
recognized as binding. If you fail to make your car payment, you can
lose your car. Not only that, but you can be SUED for NOT performing
you obligations as are listed in that contract. A contract is a BIG
DEAL.
But you do NOT have an "email" contract with ANY internet email
service provider. You have license to use the email service. And the
published POLICIES of the email provider are voluntarily BINDING upon
them (and YOU) but this is NOT a contract in the legal sense of the
word. A court of law will ENFORCE a contract. A court of law will
FORCE a person who breaches or breaks a contract to either perform or
pay DAMAGES. Contract law is well established.
With regard to Google, Yahoo, Hotmail and the rest, business
circumstances generally ensure that THEY will not mess with your
email. If YAHOO got sued for a breach of privacy (I understand that
they did get sued in the past on a similar issue, but that is not
relevant here) . . . then we would ALL hear about it. Because Yahoo,
Google, Hotmail and others are in a VERY competitive business, any bad
publicity over privacy issues can cost LOTS of money. The potential
loss of advertising and other revenues is very real. And THAT is your
biggest security with regard to those providers.
But ANY email you send to ANY of these internet email services FIRST
has to go through several other providers FIRST. My internet service
provider gives me internet via cable. THAT company can monitor my
email (if they so choose). They aren't likely to because I DO have a
contract with THEM! The company(s) that provide services to your
internet email company (lile the telephone company)--- those (unnamed,
unseen) companies ALSO can monitor your email if they choose. Any
legal right they may have to do so is PROBABLY limited by your
contract with your internet service provider, but there is no
guarantee of that fact. Finally, the guy who GETS your email on the
other end has his/her own ISP, telephone company, and various other
service providers. THEY can monitor the email you send on THAT end
too! Generally, they don't for the same reasons that Google and Yahoo
and HotMail don't mess with your email. That kind of thing is BAD for
business!
Unviersities and colleges, however, are in a unique situation. You
PAY them tuition and your enrollment represents a CONTRACT. But what
little law there exists that MAY cover the issue of email privacy is
left over from the days when email was a very EXPENSIVE service
provided only at the Pentagon or deep inside very BIG corporation.
Universities STILL get to monior and inspect your email EXACTLY AS IF
YOU WERE AN EMPLOYEE.
As YOU found out, they can and DO ARCHIVE your email. That has some
disturbing implications for many of us. That means that ALL that
email you wrote during four years of college and three years of
graduate school may STILL be sitting on some magnetic/industrial
electronic storage device in some archive somewhere. The device may
still be connected to a computer system somewhere. And that email may
STILL be subject to retrieval and review! Scary, huh!
Not if but WHEN this issue goes to court (some case with issues much
like yours), the case will probably go forward to the U.S. Supreme
Court. But that won't happen for a while. Court cases of this type
take TIME and MONEY. And most new college graduates have neither the
time nor the money to pursue such a legal undertaking.
Now, here is a true story about someone who is in MUCH worse shape
than YOU are as far as email is concerned. Some elements of this
story have been fictionalized to protect the privacy of the victim.
The FACTS with regard to email and email privacy are every bit as REAL
as I can make them. The rest is just windowdressing to permit me to
PRESENT those facts here. Where I talk about LEGAL PRIVILEGE and the
like, THAT TOO is REAL. But leave the rest alone in terms of the
details. I am VERY well defended legally with regard to my right to
present this informaion as I have here.
My friend was a physician attending law school. She had been
criminally harassed and raped in the years BEFORE attending either
medical school or law school. She had suffered in all the ways that
ANY rape victim would suffer. During law school, she emailed a
professional psychotherapist she had worked with information about how
she had been sexually harassed in both medical school and in residency
training. As one would expect, in this therapeutic context, she gave
the NAMES of the faculty involved and she stated to her therapist
EXACTLY how she felt about this circumstance.
As she approched graduation from law school, she applied both to take
the BAR examination (to practice law) and she applied for a medical
license in the stat where she was living. She had PASSED the medical
boards WHILE she was attending law school.
Somewhere along the line, (both the law school and the medical school
were involved at some level) ALL of her private, password protected,
LEGALLY PRIVILEGED communications were compromised. She had written
her therapist (via email) during ALL three years of law school. All
of those passsword protected, supposedly private emails were
compromised. ALL of thsoe emails were handed over to BOTH the Medical
Examiners and the BAR examiners in her state.
Her communications to her psychotherapist were SUPPOSED to be legally
privileged. The law school KNEW that. The medical school knew that.
The medical school in particular knew that because the medical school
is governed by nearly ALL of the same privacy regulations that govern
hospitals. The medical school KNEW that it could be SUED over this
issue.
Not only was she DENIED the opportunity to take the Bar examination
after this, she was also DENIED a medical license. And to make
matters worse, the Medical Examiners have PUBLISHED a significant
portion of those emails on the internet. The secretary of the State
Medical Board chose to read, review, rewrite, edit and ultimately
PUBLISH these emails on the internet as part of the public "Findings,
Order, and Journal Entry" of the State Medical Board of XXXXXX. This
document is available on the internet. Because this is a PUBLIC
document, the document is LAWFULLY published on the internet as a
public record.
Any court where she tried to CHALLENGE the publication of this
document would be hard pressed to find in her favor. She would have
to START the proceedings at a disadvantage. She would face the
presumption of the court that the STATE MEDICAL BOARD acted legally
and properly. The State Medical Board has a LOT of authority. And in
this particular state, the State Medical Board has the status of an
"expert witness." The State Medical Board ALSO has the legal
statutory "presence" or authority generally given to a small claims
court. The court would BEGIN the proceedings as if this were an
APPEAL of a lower court decision. In this instance, she's ALREADY
lost round ONE. And in this case, round one was a knockout to her
career and her future in BOTH medicine and law.
Email me on this issue (if you are an attorney). If you can show the
right credentials and intent, my friend really DOES need a good
lawyer!
As a direct result, my friend is over $500,000 in debt for a legal
education and a medical education that she cannot use. Having been
denied both a medical license and the opportunity to take the Bar
examination is an event that has crushed her physically and
spiritually. She's lost her spouse. She was homeless for a time
(living with relatives). She's gained 90 pounds. And she has
developed diabetes and hypertension. She now takes medication. She
has ZERO as far as a credit rating is concerned. She's lucky to be
living in government subsidized housing! Just recently she had to
put her child back on medicaid.
She did try and continue her training as a physician. But during the
interview, she was shown a copy of the "Findings, Order, and Journal
Entry" of the state Medical Board . . . where it was available on the
internet. The interview ended. She's a really good doctor. But now
she'll never practice medicine. She might have better luck at one day
practicing law . . . but even that is an uphill climb. Last I heard,
she was attending junior college and hoping to learn how to be a
computer programmer.
Her only hope legally is that her educational creditors will SUE her.
In her own defense, at THAT point she can bring up all the issues
given above in her own defense. Arguably, BOTH the medical school and
the law school intentionally INTERFERED with her ability to one day
practice either medicine or law. If this interference did NOT happen
at the time her email was harvested and compromised . . . the
interference in question DID happen at the time she had to endure the
things that she WROTE ABOUT in those emails. She wrote these things
to her THERAPSIST. And everything she said before, she can say again
in court . . . but only if she gets SUED by her educational creditors.
She has no other reasonable opportunity to pursue legal action in
this case.
At least that is what she and I discussed last time we met. We BOTH
are graduates of law school. I still might one day practice law, but
she won't.
So, getting back to your question . . . count yourself LUCKY! You are
still in school and have the opportunity to move forward with your
life and your career. My advice: stay the heck OFF of email if you
are going to discuss embarassing, or potentially embarrassing issues.
They DO have it archived. And they WILL find it and READ IT if and
when the need arises.
YES, your privacy WAS violated as you described. But as the law
stands now, your privacy was probably LAWFULLY violated. Because no
SPECIFIC laws have been written that directly address the issue of
email privacy . . . the courts will have to find other grounds upon
which base any decision FAVORING your privacy over the OWNERSHIP or
PROPERTY rights that the school has in the email itself.
Even THIS writing is NOT my PROPERTY. Google can PAY me . . . or YOU
can pay me for the TIME I took to write this post. But Google can use
this writing here in ANY way that Google may see fit (within reason).
That being the case, you JUST HAVE TO BE CAREFUL THESE DAYS! |
