The Law Developer

     This article discusses the new technologies available for doctors and patients to communicate electronically, dubbed e-Care. I believe that this technology can change the world for the better. Monitoring medicine intake, sensors that can detect for falls, using the Internet to communicate with patients, all of these will allow for doctors to better monitor patients and do so in a cheaper and more convenient manner. Using technology to make life better is the future. Unlike some people who fear technology intruding into their life, I welcome it. What I fear is the way Government will use the technology.

     Scott Adams, the creator of Dilbert, has discussed how his health insurance plan includes an email option. This option allowed him to communicate via email with his doctor to diagnose and treat small ailments. This sounds great. No driving to the doctor while sick, or even worse siting in a waiting room with a bunch of people who are more sick than you while waiting for the doctor. My problem is this: according to the 11th Circuit, there is no expectation of privacy in sent email. What does that mean to non-legal types? It means that the police can read your emails sent to your doctor without a warrant. Maybe email sent to a doctor would be treated differently by the court, but who knows. Right now, courts are still unsure of what gets 4th Amendment protection when it comes to electronic communications. Until this issue is sorted out, I don’t want my medical information being discussed via email.

     A quick tangent about “reasonable expectation of privacy”. That language is nowhere in the 4th Amendment. The 4th Amendment guarantees the right to be free from searches and seizures without a warrant. The courts then added an exception to things that are in the public view. For example, a police officer won’t have to get a warrant to search the contents of my blog because this blog is visible to the public. This exception made sense. But like all exceptions, its scope began to creep. Shortly thereafter bank records and cell-phone records were no longer protected by the 4th Amendment. Why? Because apparently you don’t have a reasonable expectation of privacy in those things. (Hey, don’t get mad at me. I don’t make the law, I just talk about it.) Now some people don’t even have a reasonable expectation of privacy in emails that are stored on their own email servers. The Supreme Court needs to rein in this exception. If the police can’t see the information without having to ask someone else to give it to them, then it should not be considered in the public view, there is an expectation of privacy, and a warrant is needed to search it.

     The other worry I have is that the information recorded will be used against patients. Most new cars have a black box that records driving information. After a crash, the insurance companies and police are scrambling to get that information. The black box in the car was paid for by the owner. Yet after a crash, that information is taken from the owner and used against him. Now imagine that same scenario in a health care situation with the insurance company knowing every thing that you did. Did you follow the doctors orders exactly? The insurance company would know. Maybe it would adjust your premiums based on how well you follow directions. Or maybe it will decide what care to cover based on how well you followed doctor’s orders.

     E-Care is coming. There is nothing anyone can do stop it, nor should they. People should do their best to make sure that before these new rules and regulations are put in place, the Government has implemented adequate privacy protections. The problem, of course, is what they put in place now can be taken away in the future. Until then, I suggest wearing two hospital gowns (one open in the front, the other in the back) to protect your privacy. Unless, of course, you like the exposure.

Stephen Burch

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     I wrote about the possible legal implications of UbiSoft’s DRM failure here. Well it seems the lawyers at UbiSoft must have read that post and started to worry. They are now giving free games to people affected by the outage.

     I also posted about the 11th Circuit’s ruling on email and privacy. Well, a petition for rehearing was filed and was joined by the good folks at the Electronic Frontier Foundation. Hopefully something good will come of this.

Stephen Burch

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     With the USPS facing budget problems and considering dropping a day of service, it seems very suspicious that the 11th Circuit makes a ruling that basically removes any 4th Amendment protection for email correspondence (Rehberg v. Paulk). In this post, Professor Kerr discusses this decision and why he believes it is wrong. For those non-legal types reading, the 4th Amendment provides:

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.

     Here is a condensed version of the case and the verdict. The Government was investigating someone and wanted to gain access to his email. So, the Government subpoenaed his ISP requesting the emails and the ISP complied. This subpoena was issued without a search warrant. The person then sued claiming this violated his 4th Amendment rights. Currently, a person has 4th Amendment protection in regards to a letter that is sent by the USPS (or any other carrier) until the letter reaches the recipient. Upon delivery of the letter, the sender’s rights expire and the 4th Amendment protection now vests in the recipient. The court reasoned that once an email is received by the recipient, the sender no longer has an expectation of privacy and therefore is no longer afforded the protections of the 4th Amendment in regards to the email. The problem with this, as Professor Kerr explains, is that this analogy is not correct. Professor Kerr creates a better analogy of a person writing a letter, making a copy of the letter, putting the original in his home, and mailing the copy. While the person may have lost 4th Amendment protection of the mailed letter, the police cannot barge into his house and take the original without probable cause and a warrant. This is precisely what happened here. The police did not subpoena the recipient’s inbox, they subpoenaed the sender’s outbox. While doing either may have been a violation of the recipient’s 4th Amendment rights, the court reasoned that doing the latter was not a violation of the sender’s 4th Amendment rights and therefore he has no standing to bring suit.

     While I joke about the integrity of the 11th Circuit, the problem is not integrity. They are probably some of the most incorruptible people in the country. And they are probably among the most brilliant legally minds in the country as well. So what went wrong?

     First, I believe that many people involved in the legal field do not actually understand technology, especially people of an age old enough to earn them the prestige of a judgeship at the Federal Circuit level. This is one of the things that attracted me to the legal field. I would read slashdot.org (look for the keyword yro – ‘your rights online’) and see cases and laws that made me believe that nobody involved in the legal decision making understood the technology they were trying to litigate or regulate. But judges are there to interpret the law, and it is up to the lawyers in the case to explain the facts in a way that the judges and juries understand. In this case, the lawyers failed at their jobs. Most lawyers do not have a technical background, and those that do usually end up working in the intellectual property arena. Very few go into criminal law or civil rights law. Yet with technology permeating every aspect of our lives, the need for lawyers who understand how technology works is becoming increasingly important in every area of law.

     Second, I believe that people do not take their online privacy very seriously. If someone is sending important emails, they should be encrypted. Especially if those emails contain information that may be incriminating (better yet, don’t send incriminating emails). Encryption software is free and fairly easy to use. This tutorial explains how to set up encryption on GMail. While this encryption requires that the recipient also use the same encryption software, this minor inconvenience is more than outweighed by the peace of mind provided by knowing that nobody, including the police, can read these sensitive emails unless the sender wants them to. This applies to more than just 4th Amendment rights. Hackers have been known to break into email accounts. Keeping sensitive information safe protects people not only from an over-aggressive government, but from hackers looking to steal their identity.

     I believe the judges got it wrong in this case, and I think the Plaintiff should appeal and hopefully the Supreme Court will get it right. But no matter what happens, I would like to see more people encrypt their data to keep both the government and criminals out of their personal lives. And for those who believe that the 4th Amendment is only there to help criminals, it is interesting to know that the person being investigated by the government had his charges dismissed. This was a fishing expedition by the authorities and it could happen to anybody.

Stephen Burch

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In 2007, the 5^th Circuit ruled that a police officer can search your cell phone without a warrant as a search incident to arrest (US v Finly article – ruling (pdf)) .

Well apparently the Ohio Supreme Court did not agree. They realized that cell phones are now much more than just phones and that police need probable cause to search them.

While I most certainly agree with the Ohio Supreme court that cell phones are more than just phone, this could have easily been avoided by simply putting a password on the phone.  While an arrestee may or may not have a 5^th amendment right to give up his password and the police may have the ability to crack the password, to do this they will most likely need a warrant. This means that the police cannot search his phone fishing for more evidence or evidence of a different crime.

While I certainly recommend not doing anything illegal, I also recommend password protecting your phone and having a way to wipe its contents remotely. That way if it is ever stolen, you can be sure that personal information is safe. And, making the police’s job more difficult is always a good side effect.

Stephen Burch

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