Is it legal for someone to snoop on your email if you don’t log out? Do you have to unlock your phone if a police officer asks? Can a private Facebook post be used against you in court? Digital rights are still in their infancy, and the laws regarding what people (and the government) can and cannot do are a little confusing. We’re not going to exhaust the issue today, but here are five things you should know.
As cases are taken to court and new web services created, the laws about your digital rights have changed over the years. In practice, your rights to protect snooping on your computer are similar to your rights in real life. Still, knowing what, when, and how others can snoop on what you’re doing is important so you can protect your information the right way.
1. Not Logging Off Email May be Tacit Authorization for Snooping
In a recent case in New Jersey a woman filed a lawsuit against a man who read her email when she left it open. We’ve all probably done this on accident before: she logged into her email on a public computer, walked away, and never logged out. Then, a coworker of hers noticed it and decided to take a look at her email when he saw his name mentioned in a subject line.
The case went to court and the jury decided that since she left her email open the man wasn’t at fault when he looked at her email. Think of it it like leaving your doors and windows open and complaining when someone looks inside. Legal blogger Evan Brown sums it up:
The court held that as a matter of law, defendant did not access the email account without authorization. Because the “index to the inbox” of the co-worker’s Yahoo account was displayed on the screen when the coworker left the computer, defendant did not access the “facility” without authorization. The accessing of the facility had been accomplished by coworker. There was no evidence of hacking or other unauthorized access to her account.
The frustrating part here is in this case it’s at the jury’s discretion whether or not you can hold someone liable for accessing your account if you leave it open. The lesson, of course, is to remember to logout of your accounts when you’re on a public computer. Photo by Colorado State Library.
2. You Do Not Have to Give Out Passwords or Phone Passcodes without a Warrant
Your computer is protected from police searches in the exact same way as your house and body. Police cannot search your computer without a warrant specifically stating that the computer is part of the search.
Your phone, however, is a bit different and the laws vary from state to state whether a police officer can look at your phone without a warrant. However, you have one simple way to protect yourself and your phone’s contents from prying eyes: passcodes. Under the Fifth Amendment’s protection against self-incrimination you are not required to hand over passwords or phone passcodes to the police if your device has incriminiting data on it. However, a judge or grand jury can force you to.
If you’re arrested, police can try to crack your password or hack into your phone. Still, the passcode will slow them down a little bit. You might also want to consider encypting data on your phone to make it even more difficult to get into. Photo by Florian Pfeifer.
3. Employers Can Legally Monitor Your Computer and Smartphone Usage
It shouldn’t be surprising that if you’re using an employer’s computer or cell phone then your employer has the right to monitor what you’re doing with it. However, it’s not just your general computer usage your employer can peek at. In some cases they have the right to monitor all your conversations. In general, your rights don’t extend too far if you’re on an employer’s computer. Theoretically, an employer could even install a keylogger on your phone if they wanted to snoop on all your actions.
We’ve talked about how you can tell if you’re being monitored, but the overarching point is pretty simple: don’t use your work computer or phone for private conversations unless you’re okay with them snooping into what you’re doing. Photo by Janet McKnight.
4. Most Web Services Can (and Will) Snoop On Your Data and Hand it Over to the Man
We’ve talked a lot about how everyone’s tracking your every move online, so it shouldn’t be surprising that many web services snoop. In short, when you sign a Terms of Service you’re often giving a web service access to everything you’re doing.
While that’s an issue in its own right, it also means that the government only needs to file a subpoena with a web service to take a look at your files (assuming they have a good reason). Dropbox has talked about this (you can encypt your data for better protection) and Google’s Terms of Service gives them access to your creations. Every other web service will do the same thing and will comply with a request from the law.
Here’s the issue. A government entity would require a warrant to search your home computer. If your computer is password protected, you have the option to remain silent and not hand over your password. However, if that entity sends a subpoena to a web service and the service complies, they can hand over all of your private data, including files, without you ever knowing.
If you want to keep your data completely private your only real option is to avoid web services and cloud storage. Most web services don’t want to hand over your data to governments, but they will when they’re served a subpoena.
5. Public and Private Posts on Social Networks May Be Used Against You
We’ve seen plenty of incidents where people are caught by police for posting pictures or status updates of illegal activity. The lesson is that if you’re doing something illegal you should not post about it in a public forum because the police may very well find it with just a little snooping.
More interesting is that even private posts are often made available in litigation. You won’t find a hard and fast law on this, but in several civil cases people have been forced to hand over a Facebook password to show private pictures and status updates.
The general rule here? Don’t post about doing anything illegal online publicly or privately. While it might seem like common sense with something like robbing a bank, a judge can order you to hand over Facebook passwords in a divorce, Twitter was forced to hand over Occupy Protestors tweets, and you might even lose a disability case due to a status update.
As a general rule your digital rights are similar to your real world ones. If you’re doing something illegal publicly and online you’re just as accountable as if you do it out in the world. However, you always have the right to refuse to hand over information to police, but not a judge or grand jury. All of that said, with a subpoena a web service may hand over information, which makes it all the more important to actually read those Terms of Service agreements. For a quick look at the laws check out the Electronic Frontier Foundation’s one page guide to your rights.
The above tips are meant purely as a guide for beefing up your knowledge on your digital rights and aren’t meant as legal advice. If you feel like you’re being illegally snooped on you should seek legal counsel.