Students' e-mail privacy is not adequately protected under law

    Do you ever feel that prickly feeling on the back of your neck when you’re at the computer, as if your every keystroke is being monitored?

    No need to call up psychological and counseling services quite yet; you may not be completely paranoid.

    Simply put, there is no such thing as an absolute right to privacy in our UCSD e-mail transactions.

    Forget about your cherished rights to privacy, or that the First Amendment protects free speech, or that the Fourth Amendment protects us against unreasonable search and seizure without probable cause — for in the university land of e-mail, those constitutional safeguards are not guaranteed.

    However, the culprit for our e-mail vulnerabilities is not only the university, because even normal nonstudent citizens of the grand ol’ United States are not bestowed with a clear-cut constitutional right to privacy that includes e-mail transactions.

    The only current U.S. statute that even remotely applies to e-mail privacy is the U.S. Electronic Communications Privacy Act of 1989. The code never actually mentions e-mail, only “”electronic communications.”” The ECPA is such a complicated and poorly written statute that it creates many loopholes and allows violations to occur unabated by default.

    According to Mike Godwin, legal services counsel for the Electronic Frontier Foundation, the ECPA could be reasonably construed to protect university e-mail by interpreting “”electronic communications”” to encompass e-mail.

    But currently, the statute is not crystal clear for a fundamental right of privacy to e-mail to be recognized. It will take some actual effort on the part of lawmakers to include e-mail in the language of definitions for the statute of extension of privacy, or else a court case that can legislate policy in place of Congress inaction.

    If the ECPA doesn’t guarantee a clear fundamental right of privacy for e-mail, how can we expect our power-hungry university officials to voluntarily give us a right that isn’t specifically outlined? Furthermore, does this enormous constitutional law hole give the necessary mandate for university officials to snoop through our UCSD e-mails?

    Our trump card lies in our Bill of Rights, relevant court cases and our California state constitution.

    A U.S. government task force investigating the link between privacy and employees working for the government found the following: “”[E-mail] monitoring of government employees of actual communications and communicators may impinge on the Constitutional rights of freedom of speech (First Amendment), against unreasonable search and seizure (Fourth Amendment), and against self-incrimination (Fifth amendment), as well as on the right to privacy, specifically as set forth in both the Privacy Act and the ECPA.””

    If e-mail privacy is purported to extend for arguably the most unprotected group — government employees — then it can easily be utilized on behalf of students at public or private universities.

    The Supreme Court cases of Griswald v. Connecticut and Roe v. Wade unmistakably carve out a right of privacy — zones in which the government cannot interfere so easily.

    And in November of 1972, California voters specifically amended Article I, Section I of our state Constitution to include among the various “”inalienable rights”” of “”all people”” the “”right of privacy.””

    In the 1975 case of White v. Davis, the California Supreme Court interpreted this inalienable right of privacy to go beyond the general “”field of personal action and belief,”” but that “”the moving force behind the new constitutional provisions was a more focused privacy concern, relating to the accelerating encroachment on personal freedom and security cause by increased surveillance and data collection activity in contemporary society.””

    Information gathering through electronic eavesdropping, monitoring of e-mails, etc., seem to fall neatly within the intent of legislative and judicial jurisdiction of protection of privacy.

    Thus there is a legitimate foundation in which e-mail transactions would be covered under the provision of right to privacy. Yet this is something that isn’t translated into UC policy.

    The University of California Electronic Communications Policy bows to many of the federal and state privacy concerns with regards to e-mail, yet instead of providing absolute rights, it provides ample loopholes of wiggle room.

    The policy states in Section IV.A , “”The university respects the privacy of electronic communications in the same way that it respects the privacy of paper correspondence and telephone conversations.””

    Yet limits and restrictions are immediately put in place under Appendix C, in which the university policy allows for seven general conditions that would “”trigger a non-consensual access”” to any electronic communication, such as e-mail and phones, without prior consent or knowledge of user. Sixth on the list of exceptions is if an administrator suspects a student or organization of some sort of misconduct that is enough to trigger a nonconsensual access. The administrator in question would not have to get a warrant to monitor your e-mail; all he or she would have to do is contact the vice chancellor or whomever the vice chancellor designates to handle such requests.

    Inspecting the reported occurrences in which non-consensual access were sought in the academic year of 2000-01 reveals that UCSD sought three such requests, which were granted without prior approval. UC Davis had the most with nine, but all nine were granted with prior approval. Overall, the reported cases of nonconcensual access totals to 23 within that academic period in the UC system.

    If the numbers are accurate, 23 cases do not seem all that bad considering the enormous student population with the UC system. So where’s the smoke?

    It may be true that only a small number of students might ever have to worry about their e-mail privacy being invaded — but if you’re an organization on campus that’s under fire — such as the Che Cafe, or The Koala, or a student actively opposing certain university actions, or suspected of some sort of misconduct — watch your back.

    The bottom line is that the university owns our UCSD e-mail accounts — therefore, they set the rules. And when there is no fundamental right guaranteed, it puts all students’ privacy of e-mail transactions at risk for arbitrary review.

    So the next time you send an e-mail, I’d be thinking about who might be monitoring your every mouse click or keystroke just an office away.

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