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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