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

Posted by CmdrTaco on from the well-that's-not-very-good dept.

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."

7 of 490 comments (clear)

  1. What do you expect from ancient judges? by elrous0 · · Score: 5, Funny

    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!"

    --
    SJW: Someone who has run out of real oppression, and has to fake it.
    1. Re:What do you expect from ancient judges? by Anonymous Coward · · Score: 5, Funny

      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.

    2. Re:What do you expect from ancient judges? by ircmaxell · · Score: 5, Interesting

      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...

      --
      If a man isn't willing to take some risk for his opinions, either his opinions are no good or he's no good
  2. Hold on... by CajunArson · · Score: 5, Interesting

    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!

    --
    AntiFA: An abbreviation for Anti First Amendment.
  3. Why the law is so hard to understand... by MikeRT · · Score: 5, Insightful
    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.

  4. Why the court is wron by ral · · Score: 5, Informative
    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.

  5. Case Summary by TheMeuge · · Score: 5, Informative

    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.