Contents of Private E-Mails Are Private Property

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Suppose that I own a safe and it is empty. Someone breaks into it and finds nothing. They have trespassed at a minimum. Maybe more, maybe breaking and entering, maybe attempted burglary.

Suppose now that I invent a new soft drink and I keep the formula in this safe. No one can chemically analyze the soft drink and replicate the formula. Someone breaks into the safe and steals the formula. Is the crime worse? I say it is. The harm to me is greater. One cannot assume that the formula, as an idea, is not a scarce good or a free good. It is my private property. It can be copied without disturbing the original, but that is not relevant in this case because I’ve placed a boundary around it. We shouldn’t go off on a confusing tangent about it using a concept of intellectual property because of the copying factor.

A private e-mail, like a letter, could physically be intercepted, accessed and copied without taking anything physical away from the sender or owner. Are the contents then not property, and is copying them therefore not a theft? I say it is theft. The “good” that is an e-mail and a letter is not purely physical. The subjective utility of it depends on its personal, private and psychological content as a communication. The thief who accesses it has, in general, undermined this utility. He has harmed the sender.

I see this case as being the same as the thief who steals the soft drink formula. There is a trespass followed by a theft.

NOTE: A comment by Nick Badalamenti with a second from Robert Wenzel has induced me to alter this post although not in the direction they suggested. All remaining errors are solely mine.

2:35 pm on August 7, 2013