11th Circuit Eliminates 4th Amend. In E-mail

Artefacto writes "Last Thursday, the Eleventh Circuit handed down a Fourth Amendment case, Rehberg v. Paulk, that takes a very narrow view of how the Fourth Amendment applies to e-mail. The Eleventh Circuit held that constitutional protection in stored copies of e-mail held by third parties disappears as soon as any copy of the communication is delivered. Under this new decision, if the government wants get your e-mails, the Fourth Amendment lets the government go to your ISP, wait the seconds it normally takes for the e-mail to be delivered, and then run off copies of your messages."

Comments

Why the law is so hard to understand...

[MikeRT]

To the outrage of a number of people I've met, I've suggested that the legal profession is actually not inherently an extremely intellectually rigorous profession on the grounds that most of its "complexities" are what programmers and engineers call "hacks" and in more layman terms, "making shit up as you go along." Exhibit A:

To see where the 11th Circuit is getting this argument, you need to know a little bit about how the Fourth Amendment protects postal mail and packages. The Fourth Amendment ordinarily protects postal mail and packages during delivery. The same rule applies to both government postal mail and private delivery companies like UPS: As soon as the sender drops off the mail in the mailbox, both the sender and recipient enjoy Fourth Amendment protection in the contents of the mail during delivery. When the mail is delivered to the recipient, the sender loses his Fourth Amendment protection: The Fourth Amendment rights are transfered solely to the recipient. In practice, this works pretty simply: Each party has Fourth Amendment protection in the mail when they’re in possession of it, and both the sender and receiver have Fourth Amendment rights in the contents of the mail when the postal service or private mail carrier is holding the mail on their mutual behalf.

Exhibit B:

The Supreme Court “consistently has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.”

Now, a person of **reasonable** intelligence has to ask why the Post Office is holding it in care of the parties and an ISP is not. Even if you expand this out, each party in the routing from point A to point B of the packets of the email message is holding that data temporarily in care of party A until it reaches the email provider of party B who, in turn holds it in care of party B. The very essence of this is that each third party is acting, in a daisy chained relationship, like the Post Office with respect to the transportation of that communication.

Mr. "I have a doctorate in law judge Joe Shmoe" apparently doesn't have the basic sense once attributed to the peasantry to apply the existing rulings to a new scenario. It's not rocket science. There is no reason why email should be subjected to a different standard than snail mail, unless that standard is even more restrictive of the government since some email systems even go so far as to use systems like SSL to explicitly add a level of privacy expectation to the communication not readily had by the average person with snail mail.

Re:What do you expect from ancient judges?

[Jenming]

In order for Fourth Amendment protections to apply, the person invoking the protection must have an objectively reasonable expectation of privacy in the place searched or item seized.

I don't know about you, but when I send an unencrypted email I have no expectation of privacy from the moment the text leaves my computer.

The law is NOT silent. 4th amendment says it all.

[fyngyrz]

Any US court that tries to argue that email isn't "protected" has little to no understanding of the US constitution: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

EMail is modern mail; and mail is one case of the "papers" mentioned in the 4th amendment. The US mail is a 100% analogy here. Sure, someone can easily can look in an envelope during its trip between parties, or at either end, but the 4th says you have the right to be secure in your papers and effects, so it is illegal to do so. EMail is precisely the same kind of communication. It isn't about the fact that someone can look; it is about your right to privacy, to expect that they shall not look, and if they do, they have harmed you.

This covers why email is protected as a side issue of the main discussion: On Privacy.

Re:What do you expect from ancient judges?

[Trails]

It's not "fair game". The constitution grants protection against unreasonable searches and seizures. Just because you leave something sitting on your porch does not give the gov't a right to walk up and grab it.

Further, the presence of https is encryption simply between the user and their immediate provider. It has nothing to do with the format of the message on the server or in transit, hence it is irrelevant to this discussion. It is not, as you put it, "end-to-end". Something like PGP would be. That being said, the concept of having to actively add security in order to protect yourself from unwarranted search and seizure by the gov't is preposterous on its face, and certainly contrary to the spirit of the US constitution. The onus is on the government to provide just cause, not on the citizens to protect themselves from intrusive gov't measures.

Re:Case Summary

[Cytotoxic]

Holy crap, that was a terrifying read. Basically the appeals court found that the prosecutor and cop in the case were granted Absolute Immunity from prosecution for their actions in intentionally framing this guy for multiple felony and misdemeanor crimes. The appeals court found that the plaintiff did indeed get falsely accused, and that the prosecutor knowingly participated in presenting false testimony to get indictments - but the poor guy has no recourse.