A Pennsylvania court ruled that email messages are not protected by any privacy interests.

Church Law and Tax 2002-03-01


Key point. Authors of email messages have no privacy interest in their messages after they are sent, and cannot complain when their messages are disclosed to others by the recipient.

* A Pennsylvania court ruled that email messages are not protected by any privacy interests, and therefore a person who turned over an email message she had received to the police was not violating the privacy rights of the person who sent her the message. A 15-year-old girl, while using a computer at home to surf the Internet, entered a "chat room" where she began receiving private chat messages from an adult male ("Robert"). Robert was a police officer, and he informed the girl of this fact and emailed her a picture of him in his police uniform. The girl informed Robert that she was 15 years old. Robert asked the girl to send him sexually explicit photos of herself, and invited her to engage in sex with him. The girl chatted with Robert several more times during the next week, and Robert repeatedly expressed his desire to meet and engage in sexual acts. The girl saved all of these chat messages. A few days later, the girl reported these incidents to the local police department, and turned over copies of her conversations with Robert. Robert was charged with criminal solicitation, and corruption of minors. He was convicted and sentenced to prison. He appealed his conviction on several grounds, including the fact that his email messages were inherently private and should not have been used against him in court. The appeals court rejected Robert’s argument. It observed,

This situation is unlike one in which a party is engaging in a conversation over the telephone. While engaging in a conversation over the telephone, a party would have no reason to believe that the other party was taping the conversation. Any reasonably intelligent person, savvy enough to be using the Internet, however, would be aware of the fact that messages are received in a recorded format, by their very nature, and can be downloaded or printed by the party receiving the message. By the very act of sending a communication over the Internet, the party expressly consents to the recording of the message ….

Sending an email or chat-room communication is analogous to leaving a message on an answering machine. The sender knows that by the nature of sending the communication a record of the communication, including the substance of the communication, is made and can be downloaded, printed, saved, or, in some cases, if not deleted by the receiver, will remain on the receiver’s system. Accordingly, by the act of forwarding an email or communication via the Internet, the sender expressly consents by conduct to the recording of the message ….

Email transmissions are not unlike other forms of modern communication …. For example, if a sender of first-class mail seals an envelope and addresses it to another person, the sender can reasonably expect the contents to remain private and free from the eyes of the police absent a search warrant founded upon probable cause. However, once the letter is received and opened, the destiny of the letter then lies in the control of the recipient of the letter, not the sender, absent some legal privilege …. Thus an email message, like a letter, cannot be afforded a reasonable expectation of privacy once that message is received. Because [the girl] received the email messages and could forward them to anyone, [Robert] had no reasonable expectation of privacy in them. Accordingly, there was no violation of his constitutional rights. Moreover, Robert could not have a reasonable expectation of privacy in his chat-room communications. When he engaged in chat-room conversations, he did not know to whom he was speaking. Oftentimes individuals engaging in chat-room conversations pretend to be someone other than who they are. Robert could not have a reasonable expectation of privacy in engaging in chat-room conversations.

Application. Many pastors have been presented with copies of email messages that implicate the sender, a church staff member, in wrongdoing. Can such messages be used as evidence in disciplining or dismissing the staff member? According to this case, they can, since those who send email messages have no legitimate expectation of privacy in the contents of the messages they send. This is a developing area of the law, and so church leaders should be sure to check with a local attorney before using email messages as evidence of wrongdoing. But, the reasoning of this court was persuasive, and is likely to be followed in other states. Commonwealth v. Proetto, 771 A.2d 823 (Pa. Common. 2001).

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