by Jasmine McKinney, Associate Staff
The Electronic Communications Privacy Act serves to regulate the collection of content through wire and electronic communications. This Act was an extension to what is commonly called the “Wiretap Statute” and forbids the “intentional interception, use, or disclosure of wire and electronic communications unless a statutory exception applies.” There were two primary exceptions under the Wiretap Statute. The provider exception grants providers the right to intercept and monitor communications in an effort to combat theft or fraud. Additionally, there is also the exception that when information is readily accessible to public any person is permitted to intercept that electronic communication. In 2005, the Second Circuit interpreted another exception to the Wiretap Act when it ruled in Hall v. Earthlink Network, Inc. that Earthlink’s continued reception of emails sent to plaintiff Hall’s account did not constitute an “interception” under the Wiretap Act because it was part of Earthlink’s “ordinary course of business.” 
Lawsuits such as the ones against Yahoo and Google have raised the question of whether e-mail users should have a reasonable expectation of privacy concerning the messages they send via a third party service providers. The third party doctrine that was articulated in Smith v. Maryland where the Supreme Court held that once a person involves a third party in communication any legally enforceable privacy rights are lost. This is precisely the argument that e-mail service providers have attempted to make. Regardless of which provider an individual chooses to use for their own personal e-mail, once a message is sent to a user who uses some other provider, one’s right to privacy is lost. However, the question remains whether this doctrine should apply to email service providers like Google and Yahoo.
Aside from an expectation of privacy, there are a number of concerns raised by the use of automatic e-mail scanning. For example, does Google use automatic scanning solely for the purposes it states or should users be concerned about something more? Further, should users be concerned with whether the information that is scanned from the e-mails they send is stored by email service providers? Overall, where should the line be drawn? The fact remains that we live in a highly technology driven world. If individuals cannot expect their communications via the Internet to be private, by what means can that expectation be met? Perhaps as this recent litigation continues to unfold, a clear answer will be given as to whether email scanning by service providers is indeed permissible under the Wiretap Act.
 Judge Allows Lawsuit Against Google’s Gmail Scans to Move Forward, http://articles.washingtonpost.com/2013-09-26/business/42421388_1_gmail-users-google-s-marc-rotenberg (last visited Oct. 6, 2013).
 Yahoo Hit with New Lawsuit over Email Scanning in Wake of Gmail Ruling http://gigaom.com/2013/10/03/yahoo-hit-with-new-lawsuit-over-email-scanning-in-wake-of-gmail-ruling/ (last visited Oct. 6, 2013).
 18 U.S.C. §§ 2510-2522 (1986).
 Internet Law Treatise, https://ilt.eff.org/index.php/Privacy:_Wiretap_Act (last visited Oct. 6, 2013).
 Hall v. Earthlink Network, Inc., 396 F.3d 500 (2d Cir. 2005).
 Smith v. Maryland, 442 U.S. 735 (1979).