Like so many other things, especially investing, your e-mail communications are more private if you conduct them offshore. That's because U.S. law enforcement and intelligence agencies essentially have "carte blanche" to U.S. e-mail providers. In certain cases, so do ordinary civil litigants.
Several factors, both legal and technological, facilitate surveillance of U.S.-based e-mail accounts. Since 1986, the government has been able to obtain basic subscriber information for telephone, e-mail, Web browsing, or other electronic services, including name, address, and toll records, simply by issuing a subpoena.
The USA PATRIOT Act significantly expands this authority. Police can now obtain "records of session times and durations," as well as records of "any temporarily assigned network address." This data makes it faster and easier to identify you and trace your Internet communications.
Another glaring exception applies to e-mail or voice messages stored on an Internet service provider's or telephone company's computers. To read your stored e-mails on Yahoo, G-Mail, etc., or listen to your stored voice messages, police need only demonstrate that the information sought is relevant to an investigation. They don't have to establish that there's probable cause of any crime.
This exception may also apply in civil cases. In 2007, a U.S. district court ruled that in a copyright dispute, the party alleging infringement may conduct ongoing surveillance of another party's stored e-mail messages.
But in the War on Terror, even these rudimentary legal protections have folded. At least one major ISP has installed a direct conduit from its servers to the largest U.S. intelligence agency—the National Security Agency. This means the government can read your e-mails and monitor your Web browsing habits in real time, without any legal authorization whatsoever.
Perhaps you think you have "nothing to hide." If so, you have the choice of doing nothing. But if you'd prefer to keep your e-mail records private, your best bet is to use a non-U.S. provider that's not subject to the USA PATRIOT Act.
One that I've long recommended is Hushmail (http://www.hushmail.com). This service isn't perfect—it has on numerous occasions released information to U.S. investigators—but since it's based in Canada, it's not subject to the USA PATRIOT Act.
If the U.S. government—or anyone else—wants your e-mail records, it must obtain a court order to obtain them. Then it must try to enforce that court order in Canada. This is possible under the U.S.-Canada Mutual Legal Assistance Treaty, but approval is not automatic. What's more, there is judicial oversight each step of the way. "Fishing expeditions" into your e-mail records simply aren't permitted.
Click here to learn 118 ways to protect your privacy—both off and on the Internet.
Copyright © 2008 by Mark Nestmann
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