Expectation of Privacy Extended to Email

An anonymous reader writes "In a 6th circuit court decision [PDF] today 4th amendment expectation of privacy rights were extended to email. 'The ruling by the Sixth U.S. Circuit Court of Appeals in Ohio upholds a lower court ruling that placed a temporary injunction on e-mail searches in a fraud investigation against Steven Warshak, who runs a supplements company best known for a male enhancement product called Enzyte. Warshak hawks Enzyte using "Smiling Bob" ads that have gained some notoriety.'"

Comments

too bad

[mchale]

I agree wholeheartedly with the court's findings -- people have an expectation of privacy when sending (hardcopy) written correspondence, and it makes sense to extend that privelege to the digital realm as well.

It's just a shame that the right decision comes down on the side of the spammer.

Re:too bad

[DragonWriter]

Yea so you can go to jail for just having an Ethernet sniffer!

Nothing in the current decision suggests that, since it is about the meaning of the Fourth Amendment and therefore the limits of government power.

It is clear text.

So are much of the the hardcopy material in which you have a reasonable expectation of privacy under the Fourth Amendment. Encryption has never been a Constitutional prerequisite to a reasonable expectation of privacy.

Re:too bad

[Chris Burke]

Regular email is like a snail-mail in an envelope -- it is trivial to read it, but it requires conscious effort to do so. A postcard could fall on the ground text-up and be read by random passers by who just happened to glance at it. Unless there is something serious going wrong, someone else's email is not going to just pop up on your screen. You have to make a conscious effort to read someone else's email, and yes I'm including using a packet sniffer.

Encryption is like shipping your letter in a box with a combination lock on it. That may be a really good idea if the contents of the letter are extremely important, but 100% absolutely NOT required for you to have an expectation of privacy vis a vis the 4th Ammendment.

People keep confusing "expectation of privacy" with "practical feasibility of someone violating their privacy if they want to". They are not the same thing. As a techie you might think it has something to do with how difficult it is to read email, but that's really irrelevent, which is obvious if you look at every other method of communication.

I have an expectation of privacy when conversing in my home, even though just putting your ear to my window would allow you to hear.
I have an expectation of privacy when using a cordless phone, even though especially the old ones were trivial to listen in on.
I have an expectation of privacy when sending a letter, even though a light shone through the envelope can reveal its secrets.

Now, if you are worried about people who don't care about your expectations of privacy or the law, and your data is important, then yes you should be aware of the practical reality and take extra precautions, eg encryption, or a sound-proof booth in your home, or whatever. That is not the same as an expectation of privacy.

Expectation of privacy means you expect you will be granted privacy, not that you expect that nobody can breach your privacy.

Re:Enzyte Why?

[OldManAndTheC]

I never understood how Enzyte ever got that big

Apparently they use their own product ...

In civil cases, all your email is discoverabable

[Christoph]

A magistrate judge ordered me to turn over all email requested by the other side in a federal civil lawsuit. This included email to my parents and my wife which discussed my feelings about the case, possible legal strategy, family member's health, etc.

I have come to understand that, in a civil case anyway, anything you document is discoverable (with the exception of communication between youself and an attorney and youself and an expert witness). I argued that the email was not relevant, but the courts are usually inclined to allow the other side to see it and decide for themselves. The other side got to pour over 500+ emails that have absolutely no relevant information.

details are here:vilana financial