13

I'm not asking whether it is ethical - that would be a totally different question.

I'm asking whether it is legal?

In my book - in my way how I interpret consensual reality - once I press SEND button it is transmitted via email client, via email server, via internet, to a destination email server.... On the way there are so many entities that can intercept the traffic that I effectively consider all my communication public.

Event when using GPG / PGP:

  • I don't trust myself (I'm yet to learn reliable way of generating private key)
  • I don't trust my device (see what they did to Snowden's laptop)
  • I don't trust the recipient (they can publish it online)

I'm thinking about implementing a buffer system:

  • email is received
  • automated reply: "we consider your email public, 7 days to opt-out"
  • sender has an option to opt-out, ignore, or edit the email (to remove non-public bits of information)
  • after 7 days with no action it defaults to be public

Would that system make it any more legal?


UPDATE: I'm still thinking about designing email system. Maybe best of two worlds:

  • one public that goes directly to email group
  • one private, that strongly suggest all messages to be encrypted
  • (general philosophy - full transparency, everything in public - without infringing anyone's right and playing by the cultural norms accepted by society)
  • THINK: email password resets are not compatible with public email inbox?
10

Generally speaking, if a person sends you an email you can publish it. Like if they call you a bunch of nasty names, or threaten you in some way, that information is yours and you can publish it.

However, I'll give you three scenarios where you should not publish an email sent to you (and I'll edit to add more if they come up).

Private facts. There is a tort called publication of private facts.

A plaintiff must establish four elements to hold someone liable for publication of private facts:

  1. Public Disclosure: The disclosure of facts must be public. Another way of saying this is that the defendant must "give publicity" to the fact or facts in question.
  2. Private Fact: The fact or facts disclosed must be private, and not generally known.
  3. Offensive to a Reasonable Person: Publication of the private facts in question must be offensive to a reasonable person of ordinary sensibilities.
  4. Not Newsworthy: The facts disclosed must not be newsworthy. Stated differently, the facts disclosed must not be a matter of legitimate public concern.

From Digital Media Law Project

Note one thing - the offensive fact does not need to have been completely private for you to be liable, it must not have been generally known. In other words, someone like you who has a really low "public" bar needs to be careful.

Also note that your buffer system might not help if the facts you publish are about someone other than the email sender; you are the one who published them.

Stolen Information

If someone sends you some intellectual property of a third party it is not yours to publish. Trade secrets, copyrighted works, prototype photos, etc. The sender might be breaking the law by sending the stuff to you but you're the one who published it so you can join as co-defendants.

Barrett Brown was indicted for sharing a link to some stolen information. A link! He's in prison on other charges.

Copyright held by the original sender (ht to @Dave_D)

If the sender is the original author of the email, then the sender holds the copyright to the body of the email. Publishing the email violates the copyright. However, you could account for this in your buffer. Maybe. I am not sure is that is explicit enough.

  • 3
    The sender of the email retains copyright of the email. Civil liability can occur if published in any way that goes beyond "fair use." – Dave D Sep 25 '15 at 5:52
  • 1
    @DaveD are you saying that if someone sends the copyrighted work of a third party the sender has a copyright also? – jqning Sep 25 '15 at 12:48
  • 1
    @nomenagentis ahhhh now I see what Dave D was talking about. I'll edit the answer. – jqning Sep 25 '15 at 15:21
  • 1
    @jqning, yes, if someone sends any work that they've non-trivially contributed to, that matter would also be copyrighted by the sender for such contributions as well. For example, Theo de Raadt owns the copyright to all OpenBSD CDs, and has the right to prohibit copying and re-distribution, even though they contain a lot of code that is not owned by him and most of which is freely redistributable. – cnst Sep 25 '15 at 22:36
5

No, it may not be legal.

Most original material is subject to the copyright laws. If one authors a poem, and sends it to a recipient by email, the poem is still copyrighted, and the author could still sue the recipient if the recipient uses the poem in ways which were not implicitly or explicitly authorised.

There are various fair use exceptions to the copyright law, as well as common knowledge like the fact that posting to public mailing lists, especially without the X-No-Archive: yes headers or some such, would result in the correspondence being picked up by various archival systems. Same goes for emails to public officials, which would be a matter of public record. (In fact, Jeb Bush (the 2016 presidential nominee) infamously released his whole mailbox (from his time as a Florida governor) a few months ago, which erroneously wasn't scrubbed to ensure that private information like social security numbers were excluded; but his whole mailbox was already available for anyone to inspect even prior to this event, should they have filed one of those public information requests with the state.)

If you want to publish all emails sent to a private email address of you as an individual, you are not a public official, and people emailing you would not otherwise know that you publish all your emails, then you might have to implement an opt-in system instead. For example, you could use one of those please-confirm-your-email type of systems that were originally designed to protect against spam, to inform the senders that you would only accept their email if they give you permission to publish it, and that all further emails would be automatically published without any further confirmations. You could also modify such a system to potentially automatically publish and/or discard emails depending on the X-Archive and X-No-Archive headers.

  • Very interesting case with Jeb Bush... – Michael Freeman Sep 25 '15 at 16:08

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