Tag Archives: Privacy

I Read Dead Peoples’ Email: UPDATE

Originally posted 2005-03-01 00:00:00. Republished by Blog Post Promoter

Remember this item?  I wrote, regarding a family’s request for access to a serviceman’s email account after his death, as follows:

I say that absent a specific compelling reason to get the email information — i.e., the location of his will or the buried treasure or something like that — it should die with the man. And, considering that, I would also require that the information ultimately revealed be narrowly-tailored as well. The court in camera, or a special master, or another neutral person should fetch the relevant information and then Yahoo! should blow taps on the account. A hero is entitled to die with his privacy and his secrets intact.

Michell Malkin reports on new developments. Like her, though for different reasons set out in my original post, I’m lukewarm about this move.

UPDATE TO THE UPDATE: Deeper treatment of this issue, and specifically the Justin Ellsworth case, continues apace. Here’s one piece in IP Law & Business (the article is not available on line for free) by Mark D. Rasch, who formerly headed the Department’s efforts to investigate and prosecute computer and high-technology crime. He recommends the creation of an ‘”Internet Living Will” designating who can have access to your electronic assets in the event of death or incapacitation, and the scope of their authority to act on your behalf.”

Also, Jonathan Bick, a lawyer in New Jersey who’s an adjunct professor at Rutgers and Pace law schools, writes in the New Jersey Law Journal, available at Law.com (registration required here, too) that agrees with the argument of my interlocutor Paul Gowder in the comments to my original post (above) that this stuff ought not to stay private: “[D]efending nondisclosure of information after a person has passed away on the basis of privacy would present significant legal difficulties. A typical result was found by the district court in New Era Publications Int’l v. Henry Holt & Co., 695 F. Supp. 1493 (S.D.N.Y. 1988), aff’d, 873 F.2d 576 (2d Cir. 1989), when it dismissed a privacy argument by noting that the author of the copyrighted work was dead, thus eliminating his privacy interests. This would also be the likely outcome should a privacy argument be present in the Yahoo! matter.”

I think it’s the wrong outcome. Expectations, expectations, expectations!

UPDATE ON REPOSTING IN 2009: Recently this item about “what happens to your email when you’re dead?” got a lot of play over Twitter.  This has been dealt with, in terms of what email providers do, elsewhere, too (and in a funny, macabre way here), but the issues I raised in this post — i.e., what should happen to your emails when you’re dead? — are not really being taken to heart by lawyers, policymakers or too many other people either.  Thinking about this more, I realized that I wrote so many posts on this topic, the last of which is here, that it should be part of my backward looking categorization project, and made up a whole category for these “emails of the dead” posts.  Enjoy them… while you can.

NSA monitoring program ruled unconstitutional

Originally posted 2006-08-17 13:24:53. Republished by Blog Post Promoter

The ACLU reports:

In the first federal challenge ever argued against the Bush administration’s NSA spying program, U.S. District Court Judge Anna Diggs Taylor rules that the program to monitor [sic] the phone calls and e-mails of millions of Americans without warrants is unconstitutional.

Hat tip to Declan McManus‘s email list. I think the word “monitor” is a little loaded here, but this decision is going to be a big deal.

UPDATE: I wrote in the comments on Dean’s World:

I will also add that when I read opinions (as I have done a little with this one) that mention King George, well, I don’t reach for my revolver exactly, but, well, that usually isn’t the sort of thing that District Court judges should spill a lot of ink on.

Evidently I was onto something:

Even legal experts who agreed with a federal judge’s conclusion on Thursday that a National Security Agency surveillance program is unlawful were distancing themselves from the decision’s reasoning and rhetoric yesterday.

They said the opinion overlooked important precedents, failed to engage the government’s major arguments, used circular reasoning, substituted passion for analysis and did not even offer the best reasons for its own conclusions.

Discomfort with the quality of the decision is almost universal, said Howard J. Bashman, a Pennsylvania lawyer whose Web log provides comprehensive and nonpartisan reports on legal developments.

“It does appear,” Mr. Bashman said, “that folks on all sides of the spectrum, both those who support it and those who oppose it, say the decision is not strongly grounded in legal authority.”

Via Insty.

The Matrix Downloaded

Originally posted 2005-04-12 13:59:00. Republished by Blog Post Promoter

Data security and privacy are not big topical interests of mine. Anything Europeans are obsessive about can’t be all that important. Throw in the ACLU, that predictable bizarro-world weathervane of right and wrong, and I’m usually pretty sure “what to think.” But part of this story about the announcement that LexisNexis databases were compromised far more than had been previously believed caught my eye. It was this:

Data-collection services provided by Seisint, based in Boca Raton, Florida, allow police and financial firms to sift through vast amounts of personal information — from the color of someone’s eyes to the type of car they drive.

One Seisint database called the Matrix, which allows state law enforcers to quickly zero in on criminal suspects, has come under criticism from civil-liberties groups.

Lexis bought Seisint last summer for three-quarters of a billion dollars. The ACLU was screaming about this “Matrix” database for a while now, and while most of their complaints did not move me, it appears that they were right on the nose about the security vulnerability of the data.

Unlike most bloggers (it seems), I am not a libertarian, nor even the biggest “civil libertarian.” I am skeptical of conspiracy theories and the like. And most private data, the stuff that the privacy fetishists obsess about, is, as one great man said (about something completely else), “dull, boring and omnipresent” and pretty much worthless — a point I make to the typical would-be Internet defamation or privacy plaintiff in that weekly phone call we get around here.

But I will say this: If government agencies are going to use their presumptive police power to collect data, however legitimately, they are — regardless of whether they outsource the task or not — obligated to insure that this information is retained securely. Even a law-and-order, Burkean conservative can recognize that duty, a duty of competence which is after all a premise of civil government … right after ordered liberty and somewhere above free ham hocks.

It looks like the State of Florida (the increasingly incompetent-looking State of Florida), which has taken a lead role in the Matrix database project, along with LexisNexis, has a lot of explaining to do. Sorry, Mr. Olson, but I suspect that some of them there trial lawyers will have some hand in making them do it.

UPDATE:  The good news is, they got the hacker who broke into the Matrix.  The bad news is… it wasn’t exactly Morpheus.

Google and the Privacy Obsession

Originally posted 2005-06-03 00:00:00. Republished by Blog Post Promoter

Google is the new horseman of the ever-approaching privacy apocalpyse, according to an article in Reuters. Why? Because Google lets you keep your mail (on its Gmail service) “forever,” though the article doesn’t explain what exactly the privacy risk is there. And, being fundamentally in the business of aggregating, analyzing and mining data, it keeps search, IP and other logging data for a long time, too. What’s the problem with that?

Lauren Weinstein, of People for Internet Responsibility — an organization whose slick, professional website suggests it has not done or even said all that much lately (though Weinstein’s blog look somewhat active) — tells Reuters, “There’s really no good reason to hold onto that information for more than a few months. . . . [Google] seem[s] to think that because their motives are pure that everything is OK and they can operate on a trust basis. History tells us that is not the case.”

Huh?

Google doesn’t have to justify its motives — which it never claimed were pure; see their stock price, thank you — and you don’t have to trust Google at all. Just don’t use it.

How long until some representative demagogues this one on Capital Hill?

Don’t ask me to keep your secrets

Originally posted 2006-12-12 11:54:33. Republished by Blog Post Promoter

Michael Atkins reports on an interesting development that could have a real effect on certain widespread litigation practices if it were to spread: A federal District Judge denying entry of a stipulated confidentiality order. Wrote the court:

There is a strong presumption of public access to the court’s files and records which may be overcome only on a compelling showing that the public’s right of access is outweighed by the interests of the public and the parties in protecting files, records, or documents from public view. . . . [P]arties seeking an order to seal any documents must provide a specific description of particular documents or categories of documents they seek to protect and a clear statement of the facts justifying a seal and overcoming the strong presumption in favor of public access.

Michael notes that this appears to be part of a trend in all courts in Washington. Clearly, there is no right or wrong to this policy, but it is, for sure, a policy decision and one that ought to be debated. There are two possible approaches: Read More…

The digital dead hand

Originally posted 2006-11-19 22:14:24. Republished by Blog Post Promoter

It’s an estate planning / New York bar exam joke — it has to do with something called the Rule Against Perpetuities. Yes, of course, we know that hands are made of digits; but how hard do we have to work to form the perfectly flowing pun when we have a real point to make?

I have been troubled for a while by the proposition that there is no cognizable expectation by a decedent of privacy of email or other online files, protected by password — by analogy to leaving one’s “personal papers” behind for heirs or executors.

Alex Wexelbalt, the very smart guy who poses as a know-nothing about copyright law at Corante / Copyfight (and often does so convincingly), actually picks up a nice point here, even suggesting that it is okay — contrary to his usual line — to care about your own IP and maybe want to protect it. Or maybe he only thinks that if you’re dead:

Neil Gaiman’s blog entry today is an earnest attempt to get writers (and by extension any of us with intellectual property we care about) to put instructions into our wills relating to that IP.

The prompt for this is apparently the fact that the recently deceased writer John M Ford failed to leave such a will and as a result the status of his literary works is uncertain. Since the multiple changes to copyright law in the last century extended IP rights well past the death of the original author, Gaiman’s advice is very sound. If you care about who gets to reinterpret, republish (or keep from publication!) or otherwise handle your creative output after you’re not around to do it, leave legally binding instructions, dammit. This especially includes situations where people would like to release their works after they’re no longer able to personally profit from them. By default if you don’t specify, then nobody gets to do anything.

I’m not sure about that proposition — “nobody gets to do anything” — but I do endorse the idea of thinking about the disposition of copyright and for that matter digital private matter after death.

As Mark Rasch wrote in a 2005 article on Law.com (registration required):

In addition to ownership of physical documents and of the IP contained in them, it appears that Yahoo is legitimately concerned with protecting Ellsworth’s privacy rights. . . . It is not clear the extent to which personal privacy rights dissipate after death, but there is no reason to believe that a promise to protect privacy (like those contained in the terms of service of the online providers) should terminate on death. . . .Typically, the court would look to the intent of the deceased. The problem here is that the decedent probably did nothing to make his intentions known.

In theory, a broad durable power of attorney properly executed and delivered to third parties could allow someone to have access to electronic assets, but this does not deal with the problem at Yahoo where an account simply “disappears” upon death or inactivity. There is no requirement that these e-mail providers give the attorney-in-fact that password, or otherwise keep the account alive. Thus, as a practical matter, access to the IP dies with the owner, absent a court order stating otherwise.

[The solution is that] when you create a free e-mail account, whether with an Internet service provider or with a free service, you should also create an “Internet Living Will” designating who can have access to your electronic assets in the event of death or incapacitation, and the scope of their authority to act on your behalf. And who knows, maybe that Great American Novel will be published after all — albeit posthumously.

Well, I can’t promise anything that interesting, much less literary, in my Yahoo! account. But we leave behind so much electronic detritus, much of it out of context and even more of it ill thought out or perhaps just plain personal. Why is the presumption in favor of giving the heirs access if they go to the trouble to seek it? I would at least shift the presumption in favor of privacy, even of the dead, based on their pre-death expectation of privacy.   How do I know it was expected? From the fact that if heirs had the password to an account, they wouldn’t need a court to order it opened; and if they don’t have it, why, there must be a good reason the late Ron Coleman didn’t give it to them.

Certainly if, as Rasch suggests, I make an Internet Living Will and give the instructions to someone other than those heirs, that would tend even more strongly to suggest I don’t want them poking around in my virtual sock drawer — I could have just given out my password. Why didn’t I?

Besides the fact that I probably forgot it myself.

Virtually alive

Originally posted 2009-04-13 12:35:01. Republished by Blog Post Promoter

No similarity to real persons, living or to be living, is intended.

No similarity to real persons, living or to be living, is intended.

It’s [coming up on] Passover, and as Jewish tradition teaches, the Exodus implicates issues of resurrection — of which there’s been a lot at LIKELIHOOD OF CONFUSION® lately!

First we had the update on an early LOC item, the Gibson guitar case.

Now further developments related to “I read dead people’s email,” the attempt by parents of an Iraq war casualty to get to the content of his email account, which was one of the very first items posted on this blog.  It was subsequently updated with developments here.  In the original post, I wrote this:

I say that absent a specific compelling reason to get the email information — i.e., the location of his will or the buried treasure or something like that — it should die with the man. And, considering that, I would also require that the information ultimately revealed be narrowly-tailored as well. The court in camera, or a special master, or another neutral person should fetch the relevant information and then Yahoo! should blow taps on the account. A hero is entitled to die with his privacy and his secrets intact.

Well, just as everything email becomes something bloggy after a few years, now Eric Goldman reports that someone is suing Blogspot to remove a dead blogger’s allegedly defamatory blog content.  Two key points he raises:

On the face of it, the lawsuit is clearly preempted by 47 USC 230, and Google ought to get a quick and unambiguous win. However, there are some lurking policy issues about dealing with online content posted by now-deceased individuals:

* Presumably the content and the account passed through Healy’s estate. Even if there was no “probate estate,” whatever that means, there is still a legal protocol for succession of Healy’s assets–including the copyrights in his blog. So someone now owns Healy’s blog, and it should be possible to determine who that is.

* Even if the legal rights have been allocated, taking control over a deceased accountholder’s account is not always easy. The last time I recall this issue being discussed, it was in the context of taking control over deceased military personnel’s email accounts. Online providers have different policies about how to deal with this–and for good reason, as too loose a policy could enable account hijacking, plus there may be concerns about the deceased accountholder’s privacy. I wonder what Blogspot’s policy is. This issue won’t come up often, but it will definitely come up again.

Yes — as I told you, we call that resurrection!

Best of 2010: You got privacy in my policy! No, YOU got policy in MY privacy!

First posted on July 15, 2010.Guns of Battleship New JerseyMindful always of my civic duty, my unique relation to humanity, and legal webby things, I’ve updated the LIKELIHOOD OF CONFUSION® privacy policy.  Your family can rest secure in the knowledge that the policy is always readily available for your perusal, as well as for bar mitzvahs, etc., merely by clicking the pressure-sensitive link at left.

But as a public service, I’m reprinting the updated policy as a post.  The public service being it’s a new way to recycle material no one has really seen so that you, the public, won’t complain so much about the service.  (Much less the portions!) — RDC

Privacy Policy

The LIKELIHOOD OF CONFUSION® blog respects the privacy of its readers and correspondents.  Of course this is an abstraction, because LIKELIHOOD OF CONFUSION® cannot “respect” or do anything.  So that means I (which is me, Ron Coleman) do these things, and indeed I will use the name of the blog and my name (Ron Coleman, remember?) interchangeably here.

If you do not understand what you just read above please read no further and navigate to some other website forever.  You might like this.

Anyway, yeah, we, I, it respect / respects everyone’s privacy, of course.  Now, below is a list of the sort of personal information, already pretty much available to everyone on earth if you use the Internet, but which if you make available to LIKELIHOOD OF CONFUSION® when browsing or navigating the site will be kept confidential unless you give me permission to release it, subject to this policy:

  • First and last name
  • Company, home, postal or other physical address
  • Other contact information, for example, telephone number, fax number, email address, and other similar information
  • Title or position in a company or an organization
  • Occupation
  • Industry
  • Personal interests
  • Any other information needed to provide a service you requested

How would I find this stuff out?  Well, scenarios where visitors provide their personal information include, but may not be limited, to:

  • Emailing, calling or communicating with me.
  • Posting a question or comment through the site.
  • Requesting literature.
  • Registering to attend a seminar or any event.
  • Participating in an online survey.
  • Requesting inclusion in an email or other mailing list.
  • Submitting an entry for a contest or other promotions.
  • Any other business-related reason.
  • Any other reason, of course.  Well, obviously.

Dog in judge's chambers, EDNY (Cadman Plaza)LIKELIHOOD OF CONFUSION® provides you the opportunity to agree or decline to provide your personal information via the Internet.  LIKELIHOOD OF CONFUSION® will inform you of the purpose for any such collection.  I do not intend to transfer your personal information to third parties without your consent, except under the limited conditions described under the bit entitled “Information Sharing and Disclosure” below.

If you do choose to provide LIKELIHOOD OF CONFUSION® with your personal information, I may make use of that information for any permitted purpose described here. I am far more likely to ignore it, however, in the unlikely event its existence ever becomes known to me.  It’s all I can do to keep track of my kids’ birthdays.

Domain and Server Information Collection

LIKELIHOOD OF CONFUSION® may collect domain and server information to enable people who can explain it to me who uses this site and how, though they will probably have to repeat themselves several times.  This data, when it is available, enables me to kind of figure out who some of the people who visit the site might be, how often they visit, and what parts of the site they visit most often.  I use this information to improve my “Web-based offerings,” if you will; for client development; to assess and implement revenue options such as advertising; and, where appropriate, for opposition research in litigation and other legal matters.  Of course I do that.

This information is collected automatically and requires no action on your part. You, your IT manager or your ISP may conceal or obscure this information by use of a number of technological methods, either at your own option and, in some cases, cost, or sometimes without your input at all. Doing so, i.e., masking your server or other identifying information, will not in any way affect your ability to use this site, which I am sure is a huge relief.  Of at least equal importance it will also not affect your ability to have children.  At least there’s no firm proof that it will.

There is one exception to the foregoing:  If your domain or server information is associated with any unauthorized exploits, hacking, malware, spam or other bad Internet things, that server or, in some cases, the entire country where that server is located is likely to be banned from all access to this and site and other affiliated websites and may be reported to third parties such as my Internet hosting service and centralized organizations that monitor and collect information about such activity.  That’s my impotent little attempt to get you back, but it’s mine.

If you believe this has already happened to you in error, please email me and we’ll talk.  Be prepared to explain to me how it could have happened but you’re still reading this, by the way.

Use of Cookies and Tracking User Traffic

Some pages on this site may use “cookies” — small files that the site software places on your hard drive for identification purposes.  A cookie file can contain information such as a user ID to track the pages visited, but the only personal information a cookie can contain is information you supply yourself.  These files are used for customization, including ease of comment posting, the next time you visit LIKELIHOOD OF CONFUSION®. They are not the Mark of the Beast.

Some parts of the site may also use cookies to track user traffic patterns.  I do this for the same reason that I collect domain and server information, as set forth above.   Cookies cannot read data off of your hard drive.  Your Web browser typically will allow you to be notified when you are receiving a cookie, giving you the choice to accept it or not, or setting either choice as a default.  No, really.

So, if you prefer not to receive cookies while browsing my site, you can set your browser to warn you before accepting cookies and refuse the cookie when your browser alerts you to its presence.  You can also refuse all cookies by turning them off in your browser.   You should know this by now.

But if you’re going to be that way and not accept cookies, there’s just one thing:  Let’s face it, you’re going to pay.  Everything comes out in the end, you know?  Some pages may not work right; you may not be able to get access to certain content on this site; perhaps you will get hives.  On the other hand, it could work out great for you — one man in Sullivan County, New York who did have this experience reports a life-altering improvement in his attitude toward Brussels sprouts.  Anyway, I don’t know which cookies do these things or why but they tell me that is possible.  I’ve never even seen one.  “Cookies”?  What can I do?  I try my best.  Did I mention my surgery from last fall?  No, I mean both.  Surgeries, that is.

Information Sharing and Disclosure

Your personal information is never shared with anyone besides those who work or consult with me, and who maintain your confidentiality on the same terms as those set out here, without your permission, except under conditions listed below:

  • Consenting to share your information to a third party service provider working on our behalf to serve you.
  • Requiring us to provide you with a product or service.

LIKELIHOOD OF CONFUSION® will also disclose your personal information if required to do so by law, or in urgent circumstances, to protect personal safety, the public or. yes, LIKELIHOOD OF CONFUSION®.

The Belated Party - Jerome ThompsonProtecting the Privacy of Children

You think I have something wrong with me?  I’m suspicious of anyone who’s even reading this section.  But the disclosure part is this:  Children under 13 years old are, surprise, not the target audience for LIKELIHOOD OF CONFUSION®, which is about grownup things like laws and judges and the Commissioner of Trademarks.  “To protect the privacy” of such youngsters, and because it wants nothing whatsoever to do with any minors not rich in its own prize-winning DNA, LIKELIHOOD OF CONFUSION® does not solicit the readership of,  personal information, or anything at all from other people’s children.

Links to Third Party Sites

This site contains links to other sites, to put it mildly.  While it is hard to fathom why anyone would think otherwise, LIKELIHOOD OF CONFUSION® does not share your personal information with those websites.  So far they haven’t so much as asked for it.  I am not responsible for the privacy practices of other sites you “arrive” at by clicking a link from here.  In fact if that’s the kind of thing that concerns you, definitely go do some serious research on the privacy policies of those other websites right away.  No, you don’t have to get back to me.  That’s certainly not something I have ever done.  It’s bad enough that you’re even reading this one.

Changes to this Privacy Policy

LIKELIHOOD OF CONFUSION® reserves the right to change, modify or update this policy at any time without affirmative notice to you, because doing so is impractical and preposterous.  It is possible that I could make substantial changes in the way I use your personal information.  By way of example, but without limitation, I may choose to recast this disclosure in iambic pentameter or render it into Klingon — a distinct possibility that depends solely on the future prospects of my keeping the lid on my simmering black rage.

In such an event, however, any change will be posted on this site in a timely fashion to accomodate those who will not have already been advised of it through screaming tabloid headlines, street demonstrations or the Emergency Broadcast System.

If you have questions or concerns about this Privacy Policy, you may click here to email them to me and I will respond brilliantly as soon as I pick myself off the floor, still numb with astonishment.

“The Victorian compromise”

Originally posted 2007-12-30 18:42:23. Republished by Blog Post Promoter

Defamation and reputation management are issues of intense interest at LIKELIHOOD OF CONFUSION®. Obviously cultural context means a lot when considering these two related topics. Here Daniel Solove reviews Professor Lawrence Friedman‘s Guarding Life’s Dark Secrets: Legal and Social Controls over Reputation, Propriety, and Privacy:

Friedman focuses much of his book on the Victorian era of the nineteenth century. The key phenomenon in his book is what Friedman terms the “Victorian compromise.” The Victorian era is famous for its staunch moral code and sense of propriety. Throughout history, Western society has had periods of licentiousness and reticence, and the Victorian era is the symbol for being buttoned-up and prudish. In England and America, this was a period of strong laws against countless forms of disfavored sex, from adultery to sodomy. But Friedman notes that a lot of vice was, in fact, tolerated during this period. According to the Victorian compromise:

Vice at least was tolerable, although only in small amounts and only if discreet and under a good deal of control. Hence a kind of double standard evolved. A prime example was the so-called red-light zone or district. These zones flourished in city after city. Houses of prostitution, gambling dens, and all sorts of vice were rampant in these districts. The law — and the police — winked at them and accepted them as part of urban life. . . . This double standard was the essence of the Victorian compromise. It stands in sharp contrast to the attitude and behavior in (say) Puritan Massachusetts Bay, in the colonial period, with its policy of zero tolerance toward vice and illegal sex. (p. 67) . . .

In a chapter on blackmail, Friedman observes that the blackmail laws fit with the Victorian compromise — they were designed to help elites protect their public reputations, to help prevent them from being threatened and extorted by the often poorer individuals who were blackmailing them (their illicit lovers or servants). He notes that “the blackmail statutes began to appear roughly about the same time and with the same underlying ethos as the other laws that made up the Victorian compromise.” (p. 99). . . .

Thus, the Victorian compromise operated to maintain a facade of respectability in public while sin occurred in the dark recesses of the private sphere. It’s ok to do it, the ethos of the age said, just be sure to hide it. The Victorian compromise “depended on privacy and secrecy.” (p. 215)

Solove highly recommends Friedman’s book. Hypocrisy has always has a role in a society in which sin cannot be eradicated — i.e., any society, including ours, and ones far more ancient than the Victorians (though like so much they may have elevated it to a very high art!). Hypocrisy is the “tribute vice pays to virtue.” I’m not so clear how this has changed, besides the fact that defamation today is widespread and the law, stunned like a deer in the headlights of a swollen First Amendment jurisprudence, acts more or less as if it has no power to prevent it.

Employees can expect some computer privacy

Originally posted 2006-09-25 14:17:00. Republished by Blog Post Promoter

The general rule regarding employees and their computers is that they have no reasonable expectation of privacy as to communications or other information on them, as long as their employer has given them notice of that fact. That’s a big “if,” but once met it’s pretty much a blank slate for employers to monitor computer use and computer communications.

What if an employee, however, goes out of his way to make it clear that he does expect a given communication to be private? Does that rebut the company’s “no reasonable expectation” policy?

A Massachusetts judge, analyzing the issue in the attorney-client context, says it may. The focus was on the use of web-based email from a work computer, which evidently many attorneys are advising employees is a way to (legally, not just practically) retain privacy:

[I]f an employer wishes to read an employee’s attorney-client communications unintentionally stored in a temporary file on a company-owned computer that were made via a private, password-protected e-mail account accessed through the Internet, not the company’s Intranet, the employer must plainly communicate to the employee that:
1. All such emails are stored on the hard disk of the company’s computer in a “screen shot” temporary file; and
2. the company expressly reserves the right to retrieve those temporary files and read them.

Obviously, it’s not too “forseeable” that a company would “plainly communicate” such a policy regarding such an unlikely configuration. The point seems to be that employees do retain their expectation of privacy, even on their employers’ machines, when they go through hoops to both maintain it and to indicate to anyone concerned that no waiver is intended. It does appear that this analysis, however, is limited to the retention of the a attorney-client privilege — which courts should, and do, guard jealously — and may not apply to other would-be private information.

See the analysis at Lee Gesmer’s MassLawBlog, where I picked this item up.