oh no! physical mail might feel insulted!
Fine then, be like that, but don't expect me to stick up for you if physical mail insults your security. I mean, yeah, that didn't make sense literally, but there was a point there. Imagine 4 separate cases of people found guilty of reading someone else's mail. One read someone's postcard, one reads someone's unencrypted e-mail, one read someone's physical mail, and one read someone's encrypted e-mail. If we actually really literally mean that all forms of communication should be considered equal under law regardless of the form of the communication, even if some forms of communication are inherently more secure than others, then these 4 people should be given the same sentences. Do you really believe that?
there's probably a case that it isn't 'circular' so much as 'based on common law'. Still, it's vague and there probably is still scope for a richer definition.
It might well be common law, I'm not sure, but I think it's kind of circular too (it could be both). We start with the question "Did X have a right to privacy in this case?", then we apply the principle "There is a right to privacy if there is a reasonable expectation of privacy.", so the question becomes "Did X have a reasonable expectation of privacy in this case?" When is it reasonable to have an expectation of privacy? At least by one interpretation of 'a reasonable expectation' I think we would say it is reasonable to expect privacy if and only if you have a right to it, and we're back where we started, so I'm not sure the principle really helps.
if your letterbox is on the street, and everyone with google streetview can see it, but the only people who can see the outside of your inbox are you, a company you specifically pay to look after it, and arguably the sender, then I could argue that email should be *more* private than snail mail. (ignore for a second email or snail mail in transit, since we're talking about 'tampering with your letterbox')
Google Street View isn't updated in real time though, and even if it was it would still only show the outside of your letterbox.
Or would you argue that a household which employs a butler has no expectation of privacy in their home? It's not like they hide everything from their butler, rather, like an isp, a part of the butler's role (which they are paid for) is a certain amount of discretion. (ditto doctors and lawyers, only in those cases it's more explicit)
I think this argument applies equally to ISPs and the postal service.
A postcard delivered by mail which means it must, at some stage, be handled by a human - the postman. An email is only seen by a human before arriving at the target computer when someone deliberately intercepts it. I expect my postcard to be able to be read by the postman and any sorting staff en route - although they are not allowed to reveal what they have read. I do not expect anyone to intercept my emails.
Okay, fair enough, unencrypted e-mail is more secure than a postcard in one sense. OTOH ECHELON would have been more difficult to do with postcards, so it's 6 of one and half a dozen of the other.
However, I should also be able to leave my car unlocked and expect it to be there when I return. I do not because of the prevalence of dishonest people. But if it is stolen the thief is not innocent of the crime of theft just as someone who reads my emails is not innocent of breaching my right to privacy.
There's a difference, though, between saying "X is wrong and Y is wrong." and saying "X is morally equivalent to Y." I think if someone breaks into your car then it's likely to be considered 'premeditated', whereas if you leave your car unlocked it may be considered 'a crime of opportunity'. I think the latter may be considered a less serious crime, and I would certainly feel less sympathetic.