Do Privacy Rights In Electronic Communications Exist?

January 17, 2012

In an era of increasing disclosures of information that once was thought to be private, determining when a personal communication will be shielded from disclosure is often difficult. Both common law and the Fourth Amendment protect the right to privacy. Individuals asserting a constitutional protection must generally demonstrate “a subjective expectation of privacy…that society accepts as reasonable.” Individuals asserting a common law claim must make a similar showing. Courts have made clear that there is no reasonable expectation of privacy in communications to large audiences, such as posts on social media websites.

However, as people use new technology and devices to communicate, seemingly private disclosures are leaving electronic trails that are visible to others, forcing courts to address whether the tracks are discoverable and where the bounds of privacy lie. Recent cases addressing how these electronic trails affect an individual’s expectation of privacy indicate two generally relevant considerations: (i) social norms and (ii) the existence of written policies that address the disclosure of stored information.