The case of Alana Shoars. In January 1990, Alana Shoars was the e-mail administrator for Epson America, Inc. Arriving for work one day, she discovered her supervisor reading and printing out e-mail messages between other employees. The company had placed a tap on the gateway that interfaced their network to MCI Communications Services. She says she had been told by the same manager that all messages on the system were to remain private. That is what she told the employees when she trained them to use the system. She questioned the practice and said she was told to mind her own business. A day later she was fired for insubordination.

Epson said that Shoars' dismissal had nothing to do with her questioning of e-mail practices. However, Shoars filed a $1-million wrongful-termination suit. In her words, "You don't read other people's mail, just as you don't listen to their phone conversations. Right is right, and wrong is wrong." That suit, and a class-action suit by Epson employees, were unsuccessful, but were appealed. Shoars' suit was settled in 1995.

Subsequently, she became e-mail administrator at Warner Bros. Communications. They told her to implement a policy that e-mail is private. She installed Lotus's cc:Mail, which encrypts messages. For a manager to read e-mail, the employee's account would have to be rebuilt with a new login and password. The system would then force the user to change it the next time a message is sent or retrieved.

Competing policies Some companies consider e-mail more private than others. William Eager, Pres. & CEO of First Bankcorp of Ohio declares, "E-mail is entirely private, like the telephone and the U. S. mail. ... [E]mployees have to feel that you trust them and that you're not looking over their shoulders." Others claim that employees' work environment is more secure and they will be more productive if they think their privacy is protected.

On the other hand, e-mail uses with company equipment, and some companies assert their right to check that it is being used properly. Michael Simmons, chief information officer for the Bank of Boston summarizes their position: "If the corporation owns the equipment and pays for the network, that asset belongs to the company, and it has a right to look and see if people are using it for purpose other than running the business." He says that at a previous job, he discovered that one employee was using the computer system to handicap dog races, and he was using 600 MB. Now, this was a few years ago, when most disks were no larger than that. The employee said he wasn't doing anything wrong because he was only doing it on his lunch hour and at night. His bosses' answer? "You cannot run a business properly when its assets ... can be diverted for personal use." Another was running his Amway business on the computer. Both were fired.

Inevitably, sending private e-mail uses company time. This can be regarded as a type of theft from the employer. But e-mail can be used to steal from the company in more direct ways. Two employees of Mentor Graphics sued the company for breach of contract, slander, and invasion of privacy. In August 1991, company officials who suspected something was amiss scanned their e-mail and found they were stealing trade secrets IBM has a strict policy against use of computers for personal purposes. It evidently believes that if employees use their work computers for personal use, they will buy fewer IBM computers. Many companies have a policy that the company can monitor e-mail messages. In November 1991, these included Federal Express, American Airlines, Pacific Bell and UPS.

Some question the ethics of reading employees' e-mail. Purdue's Eugene Spafford asks, "Even if a company does post notice, is that something it should do? The legal question may be answered, but is it ethical? The company may say it is, but the employees say it isn't, and there's a conflict." Lotus Development's Mitch Kapor says e-mail presents a hard case--it falls halfway between a telephone call and written correspondence. It is generally agreed that the company can monitor the latter but not the former.

According to a 2001 American Management Association survey, about 62% of companies monitor employees' electronic activities, such as e-mail and Web usage. More than 68% said that legal liability was the main reason for monitoring. Ten percent of the companies said they had been subpoenaed to produce employee e-mail as evidence in lawsuits. In 2003, about 25% of companies, fired employees for inappropriate use of e-mail. To be sure, there are legitimate justifications for monitoring, at least on rare occasions. Companies must act to ensure the safety of goods and services they offer to the public. E-mail must be available if needed in such an investigation. For legal reasons, companies find themselves susceptible to claims of workplace harassment, including sexual harassment. E-mail monitoring may help to punish or prevent this. On the other hand, privacy is an increasing concern worldwide in the use of computing resources. These competing concerns leave companies "between a rock and a hard place."

Experts recommend that companies develop written policies. A 1996 survey revealed only 36% of companies have policies on e-mail use. But there is a growing consensus that policies must be established and communicated clearly. The e-mail industry itself has helped lead the movement to establish policies. Since the early 1990s, the Electronic Messaging Association has urged that organizations of all sizes have a workplace policy and communicate it to employees.

Expectations of privacy. What are reasonable expectations of privacy for e-mail? Under a federal law, the Electronic Communications Privacy Act of 1986, e-mail sent over public networks is private. It is illegal to intercept or divulge it to people not party to the mail. However, there are certain exceptions. The sender or recipient can give it to whomever they choose. The system administrator can read it if necessary to forward it, or if unlawful activity is suspected. But in the latter case, it can be disclosed only to law enforcement. But the ECPA does not apply to private corporate systems.

In 2004, a new court case opened a gaping hole in the privacy afforded by the ECPA. A federal appeals court allowed a system administrator to read users' stored e-mail in order to gain a competitive advantage on his competitors. Unless overruled by the Supreme Court, this means that any e-mail message that is stored on a computer--even momentarily while being forwarded to another network host--can be read by an administrator. But, it should be pointed out that even under the 1986 act, e-mail has less protection than phone calls. Prosecutors are allowed to read e-mail if they have a search warrant--which is far easier to get than the wiretap order they would need to intercept phone calls. In fact, the federal government is requiring universities to modify their computer systems to make it easier to do this. And once an e-mail message has been read by the recipient, it can be subpoenaed by any other party to a court case.

E-mail can be used as evidence in a trial. In United States v. Poindexter a judge ruled that e-mail from John Poindexter to Oliver North could be used as evidence in the Iran-Contra case. Specifically, he ruled that the printouts saved by a trusted staff member could be used as evidence. North had erased the originals, but not the backups.

One reason for sometimes reading others' e-mail is the entire nature of the workplace, which requires collaboration. Unexpected business situations occur daily, and often materials must be retrieved from the office, desk drawer, or file cabinet of a co-worker. Suppose an employee is unavailable and the company has a responsibility to third parties where the employee's e-mail may contain important information. Suppose a press release is in e-mail, and an employee unavailable? If someone else retrieves it, he may come across a personal message. Suppose a journalist is out of town on the day that a story he has been working on becomes timely? Traditionally, the editor looks for it in his desk. Is that a violation of his rights? Is it any different if it's bits than if it's in ink? Presumably, the journalist would not want months of work to go unused. Suppose slides for a presentation are in a file cabinet, and on the day a presentation is given, an employee has appendicitis? Not many people would say they shouldn't be retrieved.

The Aerospace Industries Association came up with these guidelines for e-mail privacy: Tell employees that what they do over e-mail is not protected under the privacy act. But avoid using the e-mail system for uncovering wrongdoing. That is, don't do eavesdropping, but monitoring is OK. For example, if someone is sending and receiving unusual amounts of e-mail, you might find out why. You could ask without reading their mail.

Multinational corporations may be forced by the European Community into making their e-mail more private The EC may outlaw networks that send records without providing "adequate" safeguards for individual Europeans. In France and Germany, electronic monitoring is virtually illegal. Transferring commercially exploitable data about individuals can only be done with their prior authorization. Draft Article 24 says the EC can block a company from moving electronic information of any kind into and out of the community when the company's internal privacy rules fail to meet the EC's strict standards. The EC prevented Fiat from moving employee records from Paris to Rome because Italy doesn't have an acceptable data-protection law. However, the Information Industries Association says this policy of the EC can be exploited for protectionism.

Security of e-mail. Enough about authorized breaches of e-mail privacy; what about unauthorized access? E-mail travels across networks, usually unencoded. Thus, it is subject to the same attacks with "sniffers" that were used in the Mitnick case. If it "bounces" and doesn't reach the recipient, a copy may be sent to the system administrator of the originating system, who can read the source and destination addresses, and even the contents. All major e-mail packages allow network administrator to change passwords and read or alter messages.

Faced with these security risks, a fastidious e-mail correspondent may choose to encrypt e-mail with a protocol like PGP, which stands for "pretty good privacy." Each user of this protocol has two keys, a public key and a private key. A sender obtains the recipient's public key, and then uses this key as an input to an algorithm that performs a mathematical transformation on the mail, rendering it undecipherable to anyone not in possession of the recipient's private key. Of course, this protocol can only be used to communicate with others who are also willing to use PGP. Or, for a different kind of privacy, one may use an anonymous remailer. The ethical implications are questionable, as we shall see.

Forged mail. It is bad enough when e-mail that you thought was private is opened to public inspection. But it is even worse if someone forges e-mail in your name. In October 1995, Jinsong Hu, a promising Ph.D. candidate in applied physics, was expelled from Caltech for allegedly stalking a former girlfriend Jaijun Wen, mostly by e-mail. She claimed that Hu had threatened to rape her and was terrorizing her. She said he sent six pieces of harassing mail to her or her new boyfriend, Bo Yu. Those allegations led to Hu's arrest on January 6, 1995. He was charged with stalking. His trial lasted three weeks. On June 22, Hu was acquitted of the stalking charge after jury deliberations lasting less than three hours. Then in early October, Caltech expelled him.

Hu, however, says he didn't send some of the alleged messages, and that others were altered. Yuk Yang, a geology professor at Caltech explained, "It is very hard to prove that the person whose name is on [e-mail] indeed sent it, and that it has not been tampered with. Especially here, where these kids all have extraordinary computing ability." Hu said that former girlfriend Wen had his password, and others had access to his computer, which was often left logged on. Not to mention that it is easy to edit e-mail after it is received. The university said that charges against Hu were not based solely on his e-mail, but the bulk of the evidence examined in court and the expulsion hearing was e-mail.

Whether or not Hu was guilty of the offenses he was charged with, harassment by computer is becoming a common problem. Female computer users report getting harassing e-mail from strangers, and some have even changed their login names to discourage it. But most frequently, incidents of harassment involve romantic relationships gone sour. The evidence is very difficult to assess, because it is so easy to fake mail. Preventing faked mail is a common discussion topic on newsgroups read by system administrators. It is virtually impossible, because a perpetrator can go off campus or outside the corporate firewall to send mail from a less secure server.

Anonymous remailers. Those who don't trust the privacy of e-mail often seek a more secure means to express their views. For example, you may be a computer engineer who wants to express opinions about computer products, opinions that your employer might hold against you. Or perhaps you're seeking employment, and you don't want to jeopardize your current job. Or suppose you're a doctor and want to help your patients establish support groups for problems they don't feel comfortable speaking publicly about.

For these reasons, and other reasons not quite so noble, many anonymous remailers have been set up on the Internet. These remailers forward e-mail after removing all traces of the identity of the original sender. The mail may be directed to another person or to a newsgroup. Some even allow replies to be sent via the remailer to the original sender, thus providing double-blind communication. The most famous remailer was anon.penet.fi, operated by a thirtyish fellow from Helsinki, Finland by the name of Johan Helsingius.

Operators of remailers pledge not to reveal the identity of people who forward mail through their service. Doesn't that require the user to place a lot of trust in the remailer operator? Yes, if you use only one remailer. But a true paranoid would not rely on a single remailer, but rather forward messages through a series of remailers. Only the first remailer would see the real return address. Anyone who wanted to establish the sender's identity would have to work backwards, and a single uncooperative operator could stymie the entire search.

Ethical implications. Anonymous mail has been around for a long time, almost since the dawn of writing. But remailers permit communication with less effort, reaching a far-wider audience than ever before. As a consequence, remailers have been used for many purposes, some of them nefarious. For example, sending stolen software, transmitting hard-core pornography (readers of alt.sex.bondage were common users of anon.penet.fi). To stop these two abuses, Helsingius placed a limit on the size of messages through his remailer. Not only did that stop software pirates in their tracks, but it also stopped the pornographers, since their pictures were too large to get through. Other abuses include revealing trade secrets and kidnapping children--there are several cases where a kidnaper and his child victim made contact anonymously over the net.

It is impossible to prevent all abuses, but supporters of anonymity say that only a small portion of users engage in abuses of this sort. Still, a basic principle on which society is based is accountability for one's actions, and it has been shown that in anonymous situations, people behave with less restraint. Esther Dyson, Chairwoman of the Electronic Frontier Forum says, "The damage that can be done by anonymity is far bigger than in any other medium. In the end, you need to be able to get at somebody's identity to enforce accountability, and the question is how do you also enforce freedom of speech and freedom from prosecution for unpopular opinions?"

In February 1995, Helsingius's service was hit by a search warrant served by the Finnish police. The warrant was for the identity of someone who had allegedly posted some copyrighted Church of Scientology documents anonymously on a newsgroup. Helsingius complied with the search warrant, but challenged its legitimacy in court. He cited freedom of speech guaranteed by the Finnish Constitution and the European Convention on Human Rights. He said that protection of the confidentiality could not be affected by the fact that the contents of a message later became public. But the court said that the messages in question were sent to a public group, and public messages were not protected by law. Following an unfavorable District Court decision on August 22, 1996, Helsingius closed his service. However, about 40 anonymous remailers still exist elsewhere on the net.

In an ideal world, all e-mail would be private. But in this imperfect society, e-mail has been used for a variety of illegal and antisocial purposes. Combating at least some of these violations is a practical necessity; the challenge is to do it while still preserving a comfortable amount of trust and freedom all across cyberspace.