Pa. court discusses whether defendant has standing in another's e-mail account

In Commonwealth v. Hoppert, 39 A.3d 358 (Pa. Super. Ct. 2012), a Pennsylvania appellate court examined whether probable cause existed to obtain defendant's e-mails when the account had been closed three months earlier. The defendant argued the e-mails were stale, but the court found that "the information sought was not easily disposable and there was a fair probability that AOL had retained it."

Footnoted in the case was a discussion of whether the defendant had a reasonable expectation of privacy in the e-mail account which was in another person's name. The court compared it to a prior case determining that the defendant did not have a reasonable expectation of privacy in phone records from his girlfriend's cell phone. That case cited another which found that a defendant had no expectation of privacy in phone bills in his wife's name. The court didn't actually address standing but simply wanted to flag it for future reference.

This raises an interesting issue - proving ownership of Internet accounts can be a difficult task (in this case, however, it was an AOL e-mail account, making it a slightly clearer case). A person who creates an e-mail account under an alias could have ownership of that account. Many couples now create joint Facebook accounts (such as Jack-n-Jill Smith). The free aspect of many accounts presents another issue - how do you show it is yours and not just something you are using? Hoppert was using someone else's e-mail account, but did the e-mails belong to him because he wrote them, or were they property of the person whose name the account was in? Can we have e-mail accounts with joint property interests when e-mail providers only allow one name on the account?

Another issue with the court's discussion is whether it was proper to analogize e-mails with phone records as e-mails are not "records" (see content versus records distinction in 18 USCS § 2702). It's well-accepted that no expectation of privacy exists in phone and e-mail records (telephone numbers dialed or e-mail routing information). However, the actual content of those phone calls or e-mails may be a different story (certainly with phone calls and e-mails vary by jurisdiction). Thus, an absence of a reasonable expectation of privacy in records does not necessarily mean the same for content.