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

What do you expect from ancient judges?

[elrous0]

Half of the court probably had to have the concept of "email" explained to them. These were the annoying pricks that wore ties to class back in law school, most of whom were out of touch even back then. Now you expect a reasonable verdict that reflects modern innovations and changing behavior out of them?

"Email. Is that what my grandkids play their tic-tac-toe games on?"

"Uh, no Your Honor, that's probably a portable gaming console."

"Can I send a Tivo with one of those things?"

"No sir, a Tivo is a Digital Video Recorder."

"So an email is a Tivo?"

"Sir, I don't even know how to answer that."

"I'm ready to rule!"

Re:What do you expect from ancient judges?

[Anonymous Coward]

Mod parent up for not reading the article, only taking into account one side of the argument when forming an opinion, and not understand how the U.S. government works.

Re:What do you expect from ancient judges?

[ircmaxell]

Agreed. But the kicker here, is if EITHER PARTY uses ISP hosted email, then the message is fair game here. So even if I run my own email server, I still probably won't be protected... Yet another right bites the dust in the name of misunderstanding...

I wonder if the same could be said for people who get snail mail delivered to a Post Office Box? It's "delivered" via a third party (albeit one sanctioned by the government)... What about phone calls that go through an intermediary (Like VOIP or forwarding services)? What about telegrams? They all rely on the same concept that the message is delivered via an intermediary, so why aren't they "fair game" as well?

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.

Re:What do you expect from ancient judges?

[ircmaxell]

When I make a phone call, I don't expect privacy either. But I do expect my 4th amendment rights to be in force. So just because someone can tap in and listen, doesn't mean that the government can do so to gather evidence... And that's the subtle difference here. Just because "someone" can read what I sent, doesn't give the government the right to spy in on it.

I'll give you another example. You're in your back-yard at your house talking with a friend. Sure, neighbors can likely hear your conversation, so you don't have an unusual expectation of privacy. But, if a FBI agent is sitting in a tree 100 yards away with a sound amplifier pointed at you (and hence recording/listening in to your conversation), that would be an invasion of your 4th amendment rights. And privacy is relative (you even allude to it in your quote). The fact that "objectively reasonable" is used to qualify privacy shows that it's relative. In your back yard, you wouldn't expect someone to explicitly listen in to your conversation (unless you were yelling). Conversely, if you were on a crowded train, you wouldn't expect any type of privacy from verbal communication (But you would expect a reasonable level of privacy if you were typing on your computer on said train). That's the difference. Not if there is any form of privacy, but if there is a reasonable expectation given the circumstances...

JMHO...

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:Other Amendments

[dkleinsc]

No. The only one that's really left appears to be the Third, which prevents the quartering of soldiers in private homes.

Hold on...

[CajunArson]

I need to actually read the case, but:
1. Alice sends Bob a message
2. Bob decides to post the message on Facebook or even, the police ask Bob for the message and Bob says: Sure here you go!
3. Alice has no expectation of privacy from Bob because she chose to send him the message.

The above situation is already well established as being perfectly fine from long before the time of the Internet. The meaning of the term "Third Party" is at issue here, and third party does *not* necessarily mean your ISP. Look at the stored communications act for the rules on how email is treated by law enforcement. If you send your email to somebody (the "third party") that somebody can choose to hand it over to anyone. However, this isn't any different than sending a letter over the Pony Express and having the person you sent the letter to read it in the town square for everyone to here.
Moral of the story: If you don't trust a third party, don't send them information!

Re:Hold on...

[ircmaxell]

But that's not what happened in this case. What actually happened was:

1. Alice sends Bob a message
2. Bob receives the message from his ISP
3. Government goes to Bob's ISP and demands a copy of the email

So in this particular case, Bob's 4th amendment right was violated, and the data was used against Alice. So the fact that Alice's rights weren't compromised in the fetching of the data is meaningless because someone's rights --namely Bob's-- were... And that's where this ruling becomes retarded. Not because Bob chose to disclose the contents, but because the government willfully violated Bob's rights to incriminate Alice...

But there is another flaw in your argument. Bob cannot go and post an email that Alice sent to him on Facebook (well, legally at least). Even though Alice doesn't have 4th amendment rights over Bob's copy, she still does hold copyright over the message. She granted him an implicit license to read the work when she sent it to him. She did not grant a license to show that email to anyone else...

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.

Why the court is wron

[ral]

In TFA Volokh, a distinguished law professor, explains why he thinks the court got it wrong:

For a real-world example, imagine you write a letter and photocopy it before you put it in the mail. You file the copy in your closet and send the original. During the course of delivery, the original is protected by the Fourth Amendment; when it arrives, you lose Fourth Amendment protection. But the fact that you lose Fourth Amendment protection in the original does not mean that the Government can break into your house and read the copy you made. Conversely, the fact that the recipient of the mail does not have Fourth Amendment rights in the copy does not mean that the government can break into the recipient's house to read the original.

Re:Other Amendments

[MattSausage]

You are thinking of the Revolutionary war. The Civil war was the war between the states. Some four-score and seven years later.

Re:I've said it before, and I'll say it again..

[Perl-Pusher]

I would go further, write a haiku for your signature, register the copyright, put a copy right notice in the message and encrypt all of your mail. Decrypting a copyrighted work and making multiple copies, runs a foul of the Digital Millennium Copyright Act and other copyright laws.

Case Summary

[TheMeuge]

The case can be read at:
http://www.leagle.com/unsecure/page.htm?shortname=infco20100311081

Here's a brief summary

1. A guy sent some faxes to a hospital criticizing their management and mocking them.
2. The prosecutors and police were friends of the hospital management and they investigated this as a "favor"...
3. they secured three successive indictments against the guy, all of which included felony assault against a man he never met
4. each time the indictments were dismissed by a higher court
5. but they arrested and held him anyway
6. so he sued for violation of his 4th because they got his phone records and emails without a warrant and for malicious prosecution
7. The 11th circuit dismissed ALL the malicious prosecution claims, granted the police and prosecution total immunity, and ruled that the plaintiff's rights weren't violated when his emails were turned over, because they had already been "delivered" to his ISP.

There are a lot more things wrong with this decision than just the 4th amendment violations.

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.

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.