E-mail privacy belongs to government, not you

The law says the public has the right to read most of the government's e-mail, because open records are critical to democracy.

The law also says the government should not routinely read private citizens' e-mail, because privacy is guaranteed by the Constitution.

Here's how it actually works.

Getting e-mail messages out of the government is one of the toughest tasks for journalists and government watchdogs. Gov. Mark Dayton's office, for example, authorizes the destruction of e-mail messages not considered "records of official transactions." That's been interpreted so broadly by the governor and his predecessor, Tim Pawlenty, that public record requests for the governor's internal e-mails usually turn up nothing.

For other branches of government, requests for e-mail messages are often answered with howls of anguish, with agencies saying they're flummoxed by their e-mail systems and quoting huge prices to search for relevant records.

Meanwhile, law enforcement agencies have the power to read private citizens' e-mail messages without a search warrant, thanks to a law passed 29 years ago, well before most of the country had e-mail.

This paradox brings to mind the U.S. Postal Service's dead letter office.

The dead letter office hangs on to anything that appears to have monetary value. Misdirected love letters and the like end up in the shredder.

Even that orphan mail has more protection than e-mail, however. "First-class letters and parcels are protected against search and seizure in the absence of a search warrant," said Pete Nowacki, a postal service spokesman in Minneapolis.

The e-mail equivalent of the dead letter office is the web server where messages — read, unread, probably even deleted — reside in electronic limbo. In 1986, Congress passed the Electronic Communications Privacy Act that, ironically, left the door open for the U.S. Department of Justice to snoop into most e-mails 180 days or older. Under the law, those e-mails are considered to be "abandoned."

To view them as part of an investigation, the Justice Department needs only to obtain a subpoena, which is a far lower standard than the "probable cause" needed for a search warrant, said privacy advocate Mark Jaycox, a legislative analyst with the California-based Electronic Frontier Foundation.

"If you were to print out those same e-mails and lay them on your desk, they would need a probable cause warrant," Jaycox said.

That's why he and others hope that a bipartisan bill to reform the 1986 law to require search warrants for all e-mail snooping will make it through Congress this session.

"Privacy is on the public's mind more so than ever," Jaycox said.

That's obvious in Minnesota, where lawmakers are considering asking voters to amend the Minnesota Constitution to specify that electronic data is covered by the state's privacy language.

No matter where these efforts go, I still assume that every text and e-mail I send will be read by somebody other than the recipient. That's why I'll use old-fashioned paper for any communication I want to keep truly discreet.

I continue to hope that when government officials write e-mail messages, they won't be nearly as careful.