In general, it is illegal for people to read your email, intercept your text messages, or listen in on or record your telephone calls. In fact, the federal wiretap law, 18 USC 2511, and various state wiretap laws codify this fact.
There are, of course some significant exceptions to this statute. First, if any (or in some states all) party to the conversation has “consented” to the interception or recording. So when your boss reads your company email, it is typically because of a policy that permits it to do so. Many ISP’s and email providers also “reserve the right” to conduct a certain amount of e-mail or other monitoring.
By using these services you have also “consented” to allowing them to monitor your email. The vast majority of monitoring of communications is accomplished under the “consent” exception to the wiretap law.
A second, and much less used exception is the wiretap order exception. If the government, either for law enforcement or intelligence purposes, obtains a court order permitting them to intercept or record a communication, well they have a court order, right? So a court ordered wiretap is an exception to the rule that its illegal to intercept.
The third exception to the wiretap rule is the so-called “provider exception.” It really comes from the days of twisted copper cables and operator assisted telephone calls. Remember operators? Well the operator exception permitted the “provider” of telecommunications services to intercept and/or record communications “in the ordinary course of business” in order to, for example, ensure that the call went through, ensure call quality, and to make sure that you aren’t using a “black box” or “blue box” to get free long distance calls.
You see, back in the old days, people used to be charged extra for long distance calls. And some of them would do things like use tone generators at 2600 hertz to trick the phone company into not billing for the calls. The phone companies didn’t like this. So they wanted to make sure that it wasn’t illegal for them to listen for the telltale whistles of these semi-electronic devices. They lobbied Congress and Congress compliantly put in a provision in the wiretap law that said,
It shall not be unlawful under this chapter for an operator of a switchboard, or an officer, employee, or agent of a provider of wire or electronic communication service, whose facilities are used in the transmission of a wire or electronic communication, to intercept, disclose, or use that communication in the normal course of his employment while engaged in any activity which is a necessary incident to the rendition of his service or to the protection of the rights or property of the provider of that service, except that a provider of wire communication service to the public shall not utilize service observing or random monitoring except for mechanical or service quality control checks.
Key words here, “protection of the rights or property of the provider of that service.” So in theory, if a company like Microsoft thought you were doing something that effected their “rights” or their “property” – in any way, they could read your Microsoft Hotmail.
If Google thought you were pirating YouTube videos, or had stolen a pair of Google Glass glasses, or if AT&T thought you were trespassing on their property, and they wanted to “protect” their rights, they could read your email, texts, listen to your Skype or Google Voice messages, or just tap your phone.
If you sued any of them, then in the course of protecting themselves (and their property) from your obviously frivolous lawsuit, they could tap your phones, read your messages to your lawyer, and intercept your tweets, Facebook postings, and everything.
Sounds far fetched, right?
Wrong.
That’s what Alex Kilbado thought. When Microsoft suspected a blogger of being the source of a leak of a trade secret, in order to “protect” their “property” (that is, their proprietary information) they decided that they wanted to read this guy’s email. Fortunately for Microsoft, he had a Hotmail account.
According to the FBI affidavit Microsoft’s lawyers decided not to use the consent provisions of the Hotmail terms of service, or to argue that the blogger had somehow otherwise consented to the search. Nor did they turn the matter over to the cops to get a warrant. No. They relied on the “provider” exception to the federal wiretap law. (Don’t tell Microsoft, but Washington State has its own wiretap law that requires consent by all parties.)
So if any part of Microsoft wants to protect ANY property rights or interests of Microsoft against anybody or anything, then Microsoft can read their email and listen to their Skype calls. Have a dispute about your X-Box? Redmond can listen to your Skype calls. Same is true of Google, Sprint, or any provider – even providers of apps that transmit communications. As long as the provider wants to protect their rights or property, they are golden.
This was never what the provider exception was intended to do. And with telecommunications providers having property interests in gaming systems, government contracts, advertising and marketing, intellectual property, movies, songs, videos and multinational conglomerates, if you anger any of them, you become their slave. They can surveil you at will. And you thought the NSA was bad?