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

CmdrTaco posted more than 4 years ago | from the well-that's-not-very-good dept.

United States 490

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."

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490 comments

What do you expect from ancient judges? (5, Funny)

elrous0 (869638) | more than 4 years ago | (#31494448)

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? (5, Funny)

Anonymous Coward | more than 4 years ago | (#31494512)

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? (4, Interesting)

ircmaxell (1117387) | more than 4 years ago | (#31494558)

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? (2, Funny)

Anonymous Coward | more than 4 years ago | (#31494656)

I'm marking all my mail as unread, right now!

Re:What do you expect from ancient judges? (0)

Anonymous Coward | more than 4 years ago | (#31494664)

Remember the old adage "Never put in an e-mail something you would not mind being overheard in the street"?

Re:What do you expect from ancient judges? (4, Insightful)

Jenming (37265) | more than 4 years ago | (#31495048)

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? (5, Interesting)

ircmaxell (1117387) | more than 4 years ago | (#31495218)

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? (0)

Anonymous Coward | more than 4 years ago | (#31495304)

deliberate misinterpretation disguised as misunderstanding

Clarified.

Re:What do you expect from ancient judges? (0)

Anonymous Coward | more than 4 years ago | (#31495178)

How the bloody hell was this marked flamebait??

Once again (3, Insightful)

Pojut (1027544) | more than 4 years ago | (#31494468)

I've linked to it many times in the past, and it seems like a perfect time to do so again:

http://haacked.com/images/TerroristsHateFreedom.gif [haacked.com]

Re:Once again (0)

Anonymous Coward | more than 4 years ago | (#31494686)

Where were these guys when those not so long ago hundreds or thousands of e-mails were "accidently lost" related to Cheney and colleagues that were relevant to public interest? This shows how their existance is only to serve the government interests above the citizens and therefore well being of the country and not the wealth political parasites exploring every loophole purposly placed and paid by "contributions" (aka bribery) Isn't semantics a great way to manipulate the political and judicial system? These people are another example onto the pile.

Other Amendments (1)

pipingguy (566974) | more than 4 years ago | (#31494490)

Is the Second still in effect?

Re:Other Amendments (4, Interesting)

dkleinsc (563838) | more than 4 years ago | (#31494524)

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

Re:Other Amendments (3, Funny)

Anonymous Coward | more than 4 years ago | (#31494666)

And if soldiers attempt to quarter themselves in your home, there's nothing you're going to be able to do to stop them.

Re:Other Amendments (3, Interesting)

zach_the_lizard (1317619) | more than 4 years ago | (#31494750)

I think that one may have been abused during the Civil War, so even that one has been violated. It just hasn't been continuously violated.

Re:Other Amendments (0)

Anonymous Coward | more than 4 years ago | (#31494968)

I think that one may have been abused during the Civil War, so even that one has been violated. It just hasn't been continuously violated.

Uh.... forgive me for not knowing my American history, but wasn't the US Constitution (and thus also the 3rd amendment) brought in *after* the Civil War? So although there may well have been abuse of this sort prior to it being introduced, surely they don't count as violations?

(yes, I know.... waaaaay off topic. heh; whadya gonna do about it?)

Re:Other Amendments (4, Informative)

MattSausage (940218) | more than 4 years ago | (#31495020)

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

Re:Other Amendments (1)

Rozine (1345911) | more than 4 years ago | (#31495130)

That is incorrect. The American Civil War was about a century after the Constitution came into effect, minus a couple decades.

Re:Other Amendments (3, Informative)

ElectricTurtle (1171201) | more than 4 years ago | (#31495146)

The US Constitution was ratified in 1788 (though the Bill of Rights was not made effective until 1791, and they were not made to apply to the states in superseding state law until the 'incorporation' under the 20th century 14th Amendment interpretation explicit in cases like Gitlow v. New York), the US Civil War began in 1861. Please, please tell me that you are not a US voter.

Re:Other Amendments (2, Interesting)

bsDaemon (87307) | more than 4 years ago | (#31495354)

The sad thing is, a naturalized citizen probably has a higher likelihood of actually knowing this than most natural-born citizens under a certain age. For what it's worth, I got the highest score in my school on the US History state assessment, which I finished in about 45 minutes and still found to be harder than the AP exam, and I am a natural-born citizen... I just didn't sleep through civics class. however, I suspect the GP to be a foreigner not being sent through the ringer of the naturalization process, which is pretty rigorous. Many of the people I've met who knew history and civics the best were naturalized citizens, but the carrot is there for them to bother to learn it.

Re:Other Amendments (2, Informative)

ircmaxell (1117387) | more than 4 years ago | (#31495074)

No, it wasn't. The way the 4th amendment is worded, No soldiers can be quartered in any house without consent of the owner during peace times. During war, they may so long as it is done in a manner which was prescribed by law (So as long as the government passed a law with guidelines on how to do it, it is legal for soldiers to bed in a home without the consent of the owner)... At least that's how I read it...

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Ah. That's why we're in a perpetual war then. (0)

Anonymous Coward | more than 4 years ago | (#31495264)

War on Drugs
War on Terror
War on Paedos*
War on the Constitution.

(* Coming soon)

Re:Other Amendments (1, Informative)

Anonymous Coward | more than 4 years ago | (#31495206)

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

So, quartering during wartime is ok, as long as it's "in a manner to be prescribed by law".

Re:Other Amendments (1)

Miseph (979059) | more than 4 years ago | (#31495292)

That one and several others. Lincoln declared Martial law, suspended Habeas Corpus, and openly ignored huge chunks of the Constitution and US law.

If it weren't for the issue of slavery, and the fact that the South didn't behave all that much better, it would be very hard for anyone to honestly side with Lincoln and the North.

And no, I'm not a Southerner, secessionist, KKK member, or any of that nonsense.

Re:Other Amendments (2, Interesting)

roaddemon (666475) | more than 4 years ago | (#31495044)

Mod me -1 pedantic, but it only prevents the quartering of soldiers in private homes "without the consent of the Owner".

"No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law."

Re:Other Amendments (0)

Anonymous Coward | more than 4 years ago | (#31494630)

Does it matter? It's not like you're going to do anything with it.

Re:Other Amendments (2, Interesting)

Pojut (1027544) | more than 4 years ago | (#31494850)

Let's see...we have three legally purchased firearms in our house, each of which we could take to the range any day we please and blow through as much ammunition as we can until they kick us out.

Yeah, I would say the Second Amendment is still in effect. Stop sensationalising things.

Re:Other Amendments (2, Interesting)

crashumbc (1221174) | more than 4 years ago | (#31495080)

funny, because there are MANY places in this country where you can't do that... Just because you happen to live in Texas doesn't mean the 2nd isn't being violated.

Re:Other Amendments (0, Flamebait)

hamburger lady (218108) | more than 4 years ago | (#31495272)

'many places' being states i assume? because currently the 2nd amendment only really applies to the federal government. states can, under the US constitution, abridge the right to bear arms all they want to.

there is a decision being appealed to the scotus on that issue - but really the court has to decide on it to make it official.

Re:Other Amendments (2, Interesting)

Pojut (1027544) | more than 4 years ago | (#31495338)

Actually, I live in Maryland...which has some of the most strict gun laws in the nation. Thanks for making assumptions though, I appreciate it.

Re:Other Amendments (2, Insightful)

Low Ranked Craig (1327799) | more than 4 years ago | (#31495164)

Depends on the state. I live in Arizona and I carry a handgun anytime I feel like it, anywhere but a bank or a federal building. I don't usually, because it's not necessary. Don't try this in California unless you want to see the inside of a jail cell. Gotta love states that can arrest you and convict you for exercising your constitutional rights.

Re:Other Amendments (2, Interesting)

ElectricTurtle (1171201) | more than 4 years ago | (#31495330)

Federal property aside, I don't believe there is any part of Arizona carry law that specifically pertains to banks. Some banks may post that they prohibit carry and that posting has the effect of law (usually covered as 'trespassing'), but if a bank has no policy then there is no reason you couldn't carry there if you wanted.

I live in VA and during the summer I open carry, and I selected a bank that did not have any objections to my sidearm. It's best to look at the small, local banks (mine has three going on four branches total) because they don't have policy set by faceless functionaries at some huge out-of-state HQ.

Self Hosting (2, Insightful)

carp3_noct3m (1185697) | more than 4 years ago | (#31494496)

Well, I'm curious about something, how does that apply when I control and run my own domain and email, but it is hosted by a third party? I have been using dreamhost for the past 3 years and I love it, but would they have to only contact dreamhost or do they have to contact me as well? There seem to be two alternatives, one of which I am already partially implimenting, that is 1) Hosting your own email on your own server (at home) and 2) (the one I'm partially doing) Encrypting email whenever possible. People often forget that email is plain text, and unless you are encrypting it, it could be comprimised at any number of locations and generally should not be considered pragmatically private at all.

Re:Self Hosting (1)

vxice (1690200) | more than 4 years ago | (#31494636)

Since there is also a receiving email server the request could go to who ever hosts that. For example if you emailed a .gmail account the request would go to them. Now it would be harder to locate all email servers you send to and if the receiver often hosts their own server or you sent to many domains that would entail more work, but hey they get paid by the hour why would they care. For this reason never did understand why cops want their job to be easier. As for encryption that would just slow them down not stop them completely.

Re:Self Hosting (1)

Hadlock (143607) | more than 4 years ago | (#31494910)

I suppose in theory you could always issue all your friends webmail accounts, hosted on your server, hosting your domain. A better question might be, "does this apply only to email, or all electronic communications?" If it ONLY applies to email, your 4th ammendment rights could still be upheld by using say, private messages (PMs) on an internet forum, or any number of alternative "email" systems.
 
Does Gmail have native PGP support yet? Is there a Chrome plugin for that?

Encryption (3, Insightful)

outofpaper (189404) | more than 4 years ago | (#31494498)

-----BEGIN PGP SIGNED MESSAGE-----
Hash: SHA256

This is why the use of encryption is a must. Sending email is like sending a postcard, except that copies of it are made and stored for perusal by government officials and ISP employees. Since most people use Firefox they should check out the amazing http://getfiregpg.org/ [getfiregpg.org]
-----BEGIN PGP SIGNATURE-----
Version: GnuPG/MacGPG2 v2.0.14 (Darwin)
Comment: Use GnuPG with Firefox : http://getfiregpg.org/ [getfiregpg.org] (Version: 0.7.10)

iF4EAREIAAYFAkufikAACgkQmu9IBuIu3yEYOgD/dDFE5oEieIS9PWP7dUm+rOXU
1yfiGTlXropncPeFhX0BAIaYlc1iecFMV3CE2G2w7zZXO7pNlWEVqHS0yD9J2Z3j
=HF92
-----END PGP SIGNATURE-----

Email is like a telegraph (2, Insightful)

Anonymous Coward | more than 4 years ago | (#31494576)

Email is more like a telegraph than a postcard.
With a postcard (in the US) you hand it over to a government (now quasi-gov) agency that is legally bound to handle your message in confidence.

With the telegraph system you sent a message in cleartext via a series of intermediaries [telegraph operators/mail servers] none of which were guaranteed to work for the same company. And the message was sent a a series of binary signals (dots-dashes/ones-zeros)
 

Re:Encryption (3, Insightful)

gzipped_tar (1151931) | more than 4 years ago | (#31494608)

Unfortunately, /. sometimes sees a GPG-signed message as junk that fails to pass its bullshit "bullshit filter". Especially when you use SHA512 as the hash function.

Filter error: That's an awful long string of letters there.

Re:Encryption (1)

Hadlock (143607) | more than 4 years ago | (#31494970)

It should be trivial if it gets flagged as spam, to do a character count and see if the letters "SHA" appear anywhere in the message, and then parse the message for any strings that are the same length as a 128/256/512 hash. If that fails, just write a rule "if message contains the word(s) SHA place in inbox".

Re:Encryption (1)

iammani (1392285) | more than 4 years ago | (#31495058)

If that fails, just write a rule "if message contains the word(s) SHA place in inbox".

Will be abused by spammers.

Re:Encryption (-1)

Anonymous Coward | more than 4 years ago | (#31494662)

Or you could save the trouble and follow the old adage of "don't put anything in an email that you don't want the whole World to see."

Folks sometimes think I've watched too many mafia movies because I'm always saying "let's not discuss this with email." - especially when it's personal issues with someone at work.

Re:Encryption (1)

Ephemeriis (315124) | more than 4 years ago | (#31495340)

This is why the use of encryption is a must. Sending email is like sending a postcard, except that copies of it are made and stored for perusal by government officials and ISP employees.

Yup.

I routinely have clients asking me about security and encryption and VPNs and keyloggers and all this stuff... And then they'll be sending truly critical and confidential business information in plaintext through a Hotmail account.

Had one client convinced they'd been "hacked" because some confidential information made it out into the hands of folks who shouldn't have had it... Now, some employee obviously shared that information with someone they shouldn't have... But nobody hacked anything. Turns out everyone knew everyone else's Yahoo email passwords. They just logged in and forwarded a copy of the email.

The fanciest locks in the world aren't going to save you if you leave your doors open all the time, or give away keys to anyone who walks by.

Encryption (1)

tivoKlr (659818) | more than 4 years ago | (#31494500)

Well, all this is going to encourage is encryption of sensitive email, at least in the segment of the population that:
a. cares
b. has a clue

Re:Encryption (1)

lorenlal (164133) | more than 4 years ago | (#31494544)

Sadly the intersection of that population is way too small to matter to most of the politico...

Re:Encryption (3, Informative)

betterunixthanunix (980855) | more than 4 years ago | (#31494844)

It should not be limited to sensitive email for the following reasons:
  • This gives the government a clue about what emails you really want to hide -- and then they will just focus on those, possibly harassing the recipients.
  • Some stupid politician will see this behavior and declare that email encryption is suspicious and pass some UK/China-esque laws about it.
  • You never really know what statements of yours can be used against you. I read about a case where someone saying, "My life is over..." as they were arrested was accepted as evidence of their guilt. You may think a particular message is innocent, but there is no way to tell.
  • Even your truly innocent messages can be turned into data points for the government (or a third party) to construct a profile about you, which can then be used as part of a broader attack.

New way to wiretap (0)

Anonymous Coward | more than 4 years ago | (#31494514)

Since the communication doesn't have 4th Amendment protection after it's "delivered", does that mean that intercepting phone conversations is OK as long as capture each packet after "delivery"? Fucking RETARDED.

The judges only saw samples of emails (1)

Orga (1720130) | more than 4 years ago | (#31494526)

Subject: Via.GRA Subject: HOT WIVES WANT U Subject: LOST $$$1,234,566 MONEY FOR YOU Subject: STAY HARD LOOOOOOONGER

the fall of sadham & gonorrhea (-1, Offtopic)

Anonymous Coward | more than 4 years ago | (#31494538)

we have no secrets, we tell each other everything, about the.... (thanks carly).

several of the manuals (as well as (exploding) mountains of physical evidence) would indicate that the big flash is at hand.

never a better time to consult with/trust in your creators, as there is nowhere left to hide. look for the light/truth. you'll find/feel it. see you on the other side of it?

Let the whinging begin! (-1, Flamebait)

Silverhammer (13644) | more than 4 years ago | (#31494540)

It should be interesting to see how much (or little, more likely) our comments add to the conversation, since TFA presents the same basic position that most Slashdot readers already hold and it's presented with far more legal knowledge and in-depth analysis than most Slashdot readers are capable of.

Re:Let the whinging begin! (0)

Anonymous Coward | more than 4 years ago | (#31494644)

Thanks. You've added -so- much to the conversation with this post.

Does anyone have the right to copy your mail? (3, Informative)

rotide (1015173) | more than 4 years ago | (#31494552)

Ok, snail mail isn't allowed to be opened and copied under federal law (exceptions such as military, etc, exist).

Sec. 1702. Obstruction of correspondence

Whoever takes any letter, postal card, or package out of any post office or any authorized depository for mail matter, or from any letter or mail carrier, or which has been in any post office or authorized depository, or in the custody of any letter or mail carrier, before it has been delivered to the person to whom it was directed, with design to obstruct the correspondence, or to pry into the business or secrets of another, or opens, secretes, embezzles, or destroys the same, shall be fined under this title or imprisoned not more than five years, or both.

If only we could get the same for email. That way no copies can be made and handed off to another party.

Sadly, I doubt this will ever happen.

Re:Does anyone have the right to copy your mail? (1)

v1 (525388) | more than 4 years ago | (#31495040)

You quoted the right passage without knowing it

before it has been delivered to the person to whom it was directed,

That's the stipulation they used in the ruling.

Re:Does anyone have the right to copy your mail? (1)

rotide (1015173) | more than 4 years ago | (#31495110)

I take that to mean "if you pry into the business or secrets of the mail before it is delivered" then you're in violation.

Meaning, it's protected while en route. The second it's delivered it has no protection under that law and becomes a possession and protected as such.

Re:Does anyone have the right to copy your mail? (0)

Anonymous Coward | more than 4 years ago | (#31495226)

But once it's delivered, they don't retain it to make a copy. Otherwise, it hasn't been delivered.

This ruling is still bogus.

Re:Does anyone have the right to copy your mail? (1)

StripedCow (776465) | more than 4 years ago | (#31495300)

The problem is that the government or anyone else doesn't know when it is actually delivered to you.
I.e., at any instance, the email might be still waiting in your inbox.
So, strictly speaking, they are not allowed to open it.

Re:Does anyone have the right to copy your mail? (1)

ottothecow (600101) | more than 4 years ago | (#31495102)

If only we could get the same for email. That way no copies can be made and handed off to another party.

Maybe the USPO needs to start an email service?

I've said it before, and I'll say it again.. (3, Informative)

hacker (14635) | more than 4 years ago | (#31494568)

I've said this many times here before, and I'll say it again... don't let them see anything other than the delivery envelope (headers) of your email. They can't legally open your postal mail, so treat it the same: gpg/PGP-encrypt your emails; all of them.

If a recipient you email frequently doesn't know how to use encryption, teach them. There are plugins for Firefox, Gmail, Thunderbird, Mail.app, and dozens of other mail clients.

If it's someone you don't converse over email with often, then it's probably not worth protecting anyway.

Seriously...

  • http://www.sente.ch/software/GPGMail/English.lproj/GPGMail.html
  • http://enigmail.mozdev.org/home/index.php
  • http://getfiregpg.org/s/home
  • http://www.cumps.be/gpg-in-outlook-2007-outlookgnupg/
  • http://www.gnupg.org/related_software/frontends.html

Learn to create, protect and use your gpg keys and your keychain. It's not that hard, and the benefits far outweigh the minutes of work and learning it takes to incorporate it into your daily workflow.

Re:I've said it before, and I'll say it again.. (3, Insightful)

betterunixthanunix (980855) | more than 4 years ago | (#31494918)

Sadly, most people see encryption as an annoyance that prevents them from checking their email on random computers. They do not frankly care about whether the government reads their mail, "I have nothing hide," etc. Convenience trumps all, always.

Re:I've said it before, and I'll say it again.. (4, Interesting)

Perl-Pusher (555592) | more than 4 years ago | (#31495122)

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.

Re:I've said it before, and I'll say it again.. (1)

Kozz (7764) | more than 4 years ago | (#31495138)

I think it's been clear that the obstacles to widespread adoption of email encryption are 1) ease of use, and 2) critical mass.

Yes, yes. For you and me, using encryption is not terribly difficult. We might even be able to teach our close (non-geek) friends how to use it. But you're also implicitly taking on an educational challenge. How will you convince this friend of the merits of using encryption? My guess is that for most people I would want to teach, I'd waved off and dismissed because they don't know anybody else who uses it, and they'd ultimately state, "I've got nothing to hide". Tired argument, sure. But there it is, again and again. The how and why of encryption is the biggest hurdle for the non-techie.

We can't even get them to use decent passwords. People are lazy. Even (especially?) geeks. Unless usage of encryption can be nearly transparent and effortless, it won't be readily adopted, I'm afraid.

Re:I've said it before, and I'll say it again.. (2, Insightful)

bhima (46039) | more than 4 years ago | (#31495214)

Encryption can only be useful for emails when people use it for all or most of communications, so that one does not instantaneously flag communications of interest. Looking at my email habits, there are: 4 people who work for firms where encryption is specifically forbidden in company policy. 12 people who absolutely could not be taught how to use encryption... Including my mother who writes email as if she sending a telegraph and is paying per character. 2 people who could use encryption but who don't use it either, for the same reason I don't, the pool of potential recipients is too small.

Re:I've said it before, and I'll say it again.. (1)

Issildur03 (1173487) | more than 4 years ago | (#31495280)

Standard web-based clients (gmail, yahoo, university email systems) don't have built-in encryption/decryption systems. Sure you could find a firefox add-on that adds these, but that that leaves two problems:
1) I don't trust the third-party encryption to not spy on me (and, no, I don't want to read the code for the add-on).
2) I still won't have anyone to send my super-secure emails to: no one I know can decrypt my messages without undue trouble. Firefox add-ons aren't too relevant for most people.

If you have a real solution to those two issues, I'd love to hear about it.

Re:I've said it before, and I'll say it again.. (1)

hacker (14635) | more than 4 years ago | (#31495362)

If you have a real solution to those two issues, I'd love to hear about it.

Well first, some of those Firefox add-ons actually send an encrypted blob through the web-based email system... so if you don't have the add-on, you get ascii-armored jibberish, with legible headers.

Also, the systems you mention all support IMAP and POP3, so you can use the mail client of your choice to interact with them (Evolution, Thunderbird, Outlook, OE, Mail.app, etc.)

aarrghh, (1)

salesbot (1524011) | more than 4 years ago | (#31494582)

WTH? Using email is a requirement of modern business and personal junk. Glad there is no protection, under the Constitution, for communication.

Hold on... (5, Interesting)

CajunArson (465943) | more than 4 years ago | (#31494592)

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... (2, Informative)

CheshireCatCO (185193) | more than 4 years ago | (#31494694)

Read the article, or even the summary posted here. It's not a matter of the recipient (or sender) posting the contents, it's a question of the ISP (hence: third party) revealing the information.

Now what's missing from this is that the investigators had a subpoena according to the article. I'm not clear on how this violates the Fourth Amendment, in that case. Isn't that exactly what we want the government to do and to be able to do when investigating an alleged crime?

Re:Hold on... (1)

CajunArson (465943) | more than 4 years ago | (#31494884)

That's the problem.. the article is slashdotted and I don't trust a summary. In a legal case the term "third party" is not necessarily what you think it means. If a plaintiff is suing a defendant then a "third party" could be anyone the plaintiff chose to send an email to.
    This is from memory so it may be a little inaccurate but here is what I remember of Federal law on the subject: The stored communications act puts email in different categories depending upon whether it has been "read" or not, with stored email being considered "read" after 180 days. Basically, before the email is "read" it is a communication that is protected with a very strong expectation of privacy (think Title III, you need to have a wiretap order to intercept it which is much stricter than the requirement for a normal search warrant). However, once the communication has been "read" if it is stored long-term, the level of expected privacy drops quite a bit. Your ISP may choose to give the information over the police once it is considered a "stored" communication, whereas the ISP would not be allowed to "volunteer" the information otherwise.
    Once again, I have no way of knowing that the "third party" is an ISP in this case. The law is more complex than most Slashdotters make it out to be and I'm a little hesitant to jump to a conclusion before knowing the actual facts of the case.

Re:Hold on... (2, Funny)

NotQuiteReal (608241) | more than 4 years ago | (#31494890)

I read the article, and I'll quote it in full, here: "Error establishing a database connection".

That was not too enlightening. However, my question is about this "after delivery" bit.

For server based mail (web based or even Outlook, etc.) the mail stays at the "ISP" even after it has been "delivered". However, if I pull a message from a POP server, with the delete option, the message should "legally" no longer be on the server after delivery, right?

Re:Hold on... (1)

CheshireCatCO (185193) | more than 4 years ago | (#31495112)

I read the article, and I'll quote it in full, here: "Error establishing a database connection".

Seems clear as day to me... No, wait! The other thing: Slashdotted!

Re:Hold on... (1)

MindStalker (22827) | more than 4 years ago | (#31494944)

A Subpoena is NOT the same as a Search Warrent. A subpoena is a demand that one testified in court.

Re:Hold on... (1)

sammy baby (14909) | more than 4 years ago | (#31495342)

(IANAL)

Um... no. People can be subpoenaed to testify in court, but documents and records can also be subpoenaed. The difference is that if you are subpoenaed for documents, you are expected to turn them over, whereas if a law enforcement officer obtains a search warrant, he can go take them himself. More or less.

Re:Hold on... (1)

MindStalker (22827) | more than 4 years ago | (#31495380)

Yes, but a subpoena isn't intended to break your fourth amendment rights. You can contest a subpoena, this person didn't have a chance to contest the subpoena because his ISP was subpoenaed not him. A subpoena has a much much lower burden of proof than a search warrant.

Re:Hold on... (1)

ircmaxell (1117387) | more than 4 years ago | (#31494978)

Now what's missing from this is that the investigators had a subpoena according to the article.

A subpoena is basically a "request for appearance/data to be used in court". Basically, if I subpoena you for information, that means that you must provide me with the data. The difference in this case, is that the data was taken (Which, according to US law, requires a warrant). Sure, you can be held in contempt of court if you don't abide by a subpoena, but they cannot use a subpoena to "take" data, it must be surrendered. That's what the 4th amendment protects...

Re:Hold on... (1)

Sockatume (732728) | more than 4 years ago | (#31494812)

That's how the Fourth Amendment works. However in this case, they've taken it to mean that if the postman were to copy the letter in transit, because it's likely to get lost for example, then it'd be okay for the government to seize that copy, so long as Bob gets his copy first.

Re:Hold on... (1)

hacker (14635) | more than 4 years ago | (#31494846)

If you send your email to somebody (the "third party") that somebody can choose to hand it over to anyone.

This is PRECISELY why you encrypt emails to recipients... there is absolutely no doubt that there was an expectation of privacy, when the receiver has to decrypt the email using a private key, to read it.

Re:Hold on... (4, Interesting)

ircmaxell (1117387) | more than 4 years ago | (#31494902)

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...

Re:Hold on... (2, Insightful)

bmo (77928) | more than 4 years ago | (#31495350)

Bob cannot go and post an email that Alice sent to him on Facebook

Huh?
What?

Name a single court case where this was true in the US. Even those "this is confidential blah blah blah delete if received in error blah blah" "warnings" are nothing but attempts at intimidation with no basis in law.

--
BMO

Re:Hold on... (1)

strech (167037) | more than 4 years ago | (#31495042)

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!

Wrong, as you would learn if you RTFA:

1. Alice sends Bob a message. There are now copies of the message with both Alice (her ISP) and Bob (his ISP).
2. Alice has no expectation of privacy from the copy of the message with Bob because she chose to send him the message.
3. Court decides because Alice has no expectation of privacy from Bob's copy of the message, Alice has no expectation of privacy from Alice's copy of the message either, and so the police can grab the email from her ISP without a warrant or probable cause.

Two quotes from Kerr, now that the site is back up:

The conceptual error in Rehberg is in treating Fourth Amendment rights in the copy stored at the ISP as if it were the same as the Fourth Amendment rights in the copy that was delivered.

Moreover, the court applied to the emails seized that Rehberg received as well as sent (again quoting Kerr):

The complaint suggests that the government obtained both incoming and outgoing e-mails stored with Rehberg’s ISP; according to the complaint, investigators “obtained Mr. Rehberg’s personal e-mails that were sent and received from his personal computer.”

Re:Hold on... (1)

strech (167037) | more than 4 years ago | (#31495194)

Note that "wrong" refers to your comment as an analysis of the case in question. Your example is strictly accurate, it just isn't what happened in this case, either by the summary or article, and using it as the "moral of the story" is wrong.

Why the law is so hard to understand... (5, Insightful)

MikeRT (947531) | more than 4 years ago | (#31494682)

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 [wikipedia.org] 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.

Email is like Postcards.... (2, Informative)

EXTomar (78739) | more than 4 years ago | (#31494726)

Email is like sending a message on a postcard. How much expectation of privacy did you have doing that? The onus is up to the sender to protect the message instead of whining about any number of people who can and will inspect the email or the back of the postcard as it goes through the system.

Re:Email is like Postcards.... (2, Informative)

tizzo (1616443) | more than 4 years ago | (#31494952)

It's worse than that actually. From when a postcard leaves your mailbox until it arrives at the mailbox of the recipient, only the postal employees who handle it have legal access. If the recipient throws it away without destroying it, then it becomes publicly accessible. But mail in transit, even postcards, are protected by law from being accessed by any but specific people. Email on the other hand is placed on a wide open, publicly accessible, shared channel. Most people don't have the interest or wherewithal to sniff every packet that crosses the internet. But all people have the legal right to do so. IE if you are able to see it, then you are allowed to see it. Email then is like a postcard would be if you relied for delivery on pinning it to a public bulletin board somewhere that the recipient knew to go pick it up.

Re:Email is like Postcards.... (1)

vikingpower (768921) | more than 4 years ago | (#31495062)

Although you are right, this is not where the real crux of the case lies. The sad part of it all is that, where "a government should fear its citizens, and not citizens their government" ( forgot who said that ), here Americans very obviously must not even fear their government anymore. This creates an atmosphere of mutual distrust and lack of respect that goes beyond fear. Which is a very sad thing to happen in a so-called democracy. Even sadder is the fact that the government uses the constitution to be allowed to spy upon its citizens. In my country of origin, the Netherlands, things are not better, by the way.

Re:Email is like Postcards.... (1)

BetterSense (1398915) | more than 4 years ago | (#31495090)

I'm not the only one that PGP encrypts my postcards, surely? The mail delay on vacations is pretty inconvenient, but hey.

Re:Email is like Postcards.... (0)

Anonymous Coward | more than 4 years ago | (#31495126)

It's worse that that, the closest analogy is:

I write a message, then FAX it to the local post office. Which then FAXs it to another, larger post office, which FAXs it to the recipients local office, which FAXs it to the recipient.

Does this make it clear why there is no rational expectation of privacy for email.

Re:Email is like Postcards.... (3, Insightful)

Null Nihils (965047) | more than 4 years ago | (#31495366)

I strongly disagree. I've said it before [slashdot.org], I'll say it again: It's not like mailing a postcard, it's like sending an electrically encoded text message over a packet-switched data network where the only expected viewing point is at the intended recipient's terminal; this is how the e-mail protocol was designed to work. Sure, a malicious party can read it because it's not encrypted, but someone can easily slice open a postal mail envelope and read the contents of that, too. (You can encrypt the text of your postal-mail letters, but one already has an expectation of privacy, so few people bother. Same as e-mail.)

The bottom line is, since a non-trivial effort has to be made to read the contents, and since the service has always been presented as a "sealed letter" (via GUI icons, ISP adverts, etc), the average user is not unreasonable in expecting privacy.

It should be obvious that the 4th amendment applies to e-mail.

Lawyers - go figure. (1)

dmgxmichael (1219692) | more than 4 years ago | (#31494824)

Judges, lawyers - fools and buffoons to every last man and woman among them. They think they understand logic. They boast about their reasoning prowess. Ever tried to translate any law into code a computer can parse?

They're all a bunch of script kiddies without a computer to puke their nonsense back at them. True logic lies in the machine.

If Congress had to write laws that were held to anything remotely approaching the standard of what computers require of programmers there would be about 3 pages left.

Re:Lawyers - go figure. (1)

thePowerOfGrayskull (905905) | more than 4 years ago | (#31495202)

If Congress had to write laws that were held to anything remotely approaching the standard of what computers require of programmers there would be about 3 pages left.

Haha, good one. That, or you must not have been programming for very long... it's amazing the twisted and convoluted ways that programmers come up with to do the simplest of things. Check out "CodeSOD" on dailywtf.com sometime.

Re:Lawyers - go figure. (0)

Anonymous Coward | more than 4 years ago | (#31495374)

"Good" programmers laugh at bad programmers on The Daily WTF.

"Good" lawyers are the ones coming up with pathetic hacks that get a pat on the back from other lawyers.

The difference is that professional programmers value accuracy and logic, while professional lawyers value winning by whatever means. This extends to law-making in the worst possible way: more laws is equivalent to winning because more laws means more case work to sort out the twisted anti-logic they wrote into the laws.

We can't search your house but (0)

Anonymous Coward | more than 4 years ago | (#31494908)

we can order you to move all your stuff to the street where we can search it.

Why the court is wron (5, Informative)

ral (93840) | more than 4 years ago | (#31494966)

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.

ALOT more to this case that is disturbing... (2, Informative)

Felgerkarb (695336) | more than 4 years ago | (#31495002)

For reference, here is the text of the appellate court judgment. [leagle.com]

IANAL but, wow! I had no idea how bad this could be! The story from the judgment is that some guy sent faxes to a hospital complaining and mocking the management. As a favor, some local prosecutors investigated and set up false prosecution INCLUDING FALSE TESTIMONY to a grand jury. They subpoenaed everything including emails and phone calls.

The long and the short of it is that, because they are prosecutors, they are given absolute immunity from prosecution for their grand jury testimony, even if it is knowingly false! They are given immunity from the conspiracy to provide false testimony, since the only evidence of false testimony would be the grand jury testimony itself, which is protected!

The 4th amendment issues seem also weird to me. They say that you cannot expect a phone number to be private, since by dialing it you have given the number to the phone company, which is a third party. Really?! What is the point of a phone number, what value does it have, except with regard to the third party, in this case the phone company? I can't shout someones phone number in the street expecting that they will respond, and in any case, that also makes it public and not protected by the 4th. Again, IANAL but under what conditions would an email ever be considered private? What about letters and packages that aren't sent through the postal system? Are they private? I just don't understand this.

Again, I have no perspective and experience for this, but as a layperson, I really hope that other courts find this reasoning flawed. It seem very much so just by common sense to me, though I understand common sense doesn't necessarily mean anything here.

Article text (since it's slashdotted) (0)

Anonymous Coward | more than 4 years ago | (#31495070)

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.

In this post, I want to explain why the Eleventh Circuit’s position is wrong. I’ll start by explaining the argument’s origins in postal mail cases; I’ll turn next to Rehberg; I’ll then explain why I think the decision is based on a conceptual error; and I’ll conclude with some final thoughts.

I. The Source of the Argument: Fourth Amendment Protection in Postal Mail

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.

I should be clear that there are exceptions to these rules. For example, if a person sends a letter in what the Postal Service used to call “Fourth Class” mail — that is, mail that the Postal Service reserves the right to open — then it is not protected by the Fourth Amendment. See, e.g., Also, the Fourth Amendment protection only applies to the contents of the communication, not the outside. But the basic approach has governed postal mail privacy for a long time.

The new question is, how do to these principles apply to new communications technologies like e-mail and text messages? Unlike physical letters and packages, e-mails and text messages are just data. Communications technologies use digital networks that generate copies of the communications in the course of delivery. Those copies often stick around on servers when a copy of the communication reaches its destination. The Stored Communications Act provides statutory privacy protection to those communications stored on third-party servers, see 18 U.S.C. 2703. But does the Fourth Amendment protect those copies of communications as well? Right now the precedents are extremely sparse.

II. Rehberg v. Paulk

Enter Rehberg v. Paulk, decided by the Eleventh Circuit last week in an opinion by Judge Hull joined by Judges Carnes and Anderson. The case is kind of complicated, but here’s the relevant part. State investigators suspected Rehberg of a crime, and they allegedly used a state subpoena to obtain the contents of Rehberg’s e-mail from his Internet service provider, Exact Advertising. The complaint suggests that the government obtained both incoming and outgoing e-mails stored with Rehberg’s ISP; according to the complaint, investigators “obtained Mr. Rehberg’s personal e-mails that were sent and received from his personal computer.”

The charges against Rehberg were later dismissed, and Rehberg filed a lawsuit that claimed among other things that obtaining his e-mail with only a subpoena violated his Fourth Amendment rights. The defendants moved to dismiss under Rule 12(b)(6).

The district court denied the motion to dismiss without really analyzing the Fourth Amendment claim, but the Eleventh Circuit ruled that obtaining Rehberg’s e-mails with a subpoena did not violate the Fourth Amendment because e-mail, once delivered, is not protected by the Fourth Amendment:

        The subpoenas covered information Rehberg had provided voluntarily to third parties and for which Rehberg did not have a legitimate expectation of privacy. Thus, the subpoenas did not violate Rehberg’s Fourth Amendment rights to be free of unreasonable search and seizure.

        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. The Supreme Court “consistently has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.” Smith v. Maryland, 442 U.S. 735, 743–44, 99 S.Ct. 2577, 2582, 61 L.Ed.2d 220 (1979). “[T]he Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.” United States v. Miller, 425 U.S. 435, 443, 96 S.Ct. 1619, 1624, 48 L.Ed.2d 71 (1976).
        . . .

        A person also loses a reasonable expectation of privacy in emails, at least after the email is sent to and received by a third party. See Guest v. Leis, 255 F.3d 325, 333 (6th Cir.2001) (An individual sending an email loses “a legitimate expectation of privacy in an e-mail that had already reached its recipient”); United States v. Lifshitz, 369 F.3d 173, 190 (2d Cir.2004) (An individual may not “enjoy [ ] an expectation of privacy in transmissions over the Internet or e-mail that have already arrived at the recipient”); see also United States v. Perrine, 518 F.3d 1196, 1204-05 (10th Cir.2008) (“Every federal court to address this issue has held that subscriber information provided to an internet provider is not protected by the Fourth Amendment’s privacy expectation”) (collecting cases).

        Rehberg’s voluntary delivery of emails to third parties constituted a voluntary relinquishment of the right to privacy in that information. Rehberg does not allege [the police] illegally searched his home computer for emails, but alleges [the police] subpoenaed the emails directly from the third-party Internet service provider to which Rehberg transmitted the messages. Lacking a valid expectation of privacy in that email information, Rehberg fails to state a Fourth Amendment violation for the subpoenas for his Internet records.

III. Why the Eleventh Circuit is Wrong

I think the Eleventh Circuit’s analysis is wrong. To see why, let’s start by considering Rehberg’s outgoing e-mails, which seem to be the focus of the Eleventh Circuit’s opinion. It is true that when information is disclosed to a third party, the Fourth Amendment no longer protects the information disclosed. That’s the teaching of Miller and Smith (and, for what it’s worth, and I think those teahcings are correct). But when many copies of information are made, you have to treat different copies differently. As a result, the fact that one copy of the communication has been received does not mean that all copies lose Fourth Amendment protection. As I explained in 2008:

        Fourth Amendment rights are contextual. Data, whether in the form of numbers (like telephone numbers here) or text (in the case of a diary), does not have a preordained level of Fourth Amendment protection in the abstract. If you store your diary at home under your bed, you have Fourth Amendment rights in your diary because you have stored in it your home. If you go into the park and leave your diary out in the open, you lose Fourth Amendment rights in what you have left open because you have left it open. The Fourth Amendment rights derive from the steps that the government must go through to retrieve the information in context, not the essential nature of the data itself.

This means that you need to look at the government’s access to that particular copy of data, not just any copy of data. 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.

For these reasons, the court should have analyzed access to the e-mails stored with the ISP based on whether there was a reasonable expectation of privacy in that remotely stored copy accessed, independently of delivery of another copy. Given that we’re only at the 12(b)(6) stage, and we don’t yet know all the facts, I don’t think we have any basis to conclude that Rehberg did not have a reasonable expectation of privacy in the e-mails obtained.

The conceptual error in Rehberg is in treating Fourth Amendment rights in the copy stored at the ISP as if it were the same as the Fourth Amendment rights in the copy that was delivered. I don’t think it works that way. The rules of Fourth Amendment protection are particular to each copy: The fact that one copy loses protection does not mean that the other copy loses protection. Indeed, just think about how differently the Fourth Amendment would apply to the postal network and e-mail under the 11th Circuit’s approach. In the postal mail setting, the government could never access postal mail without a warrant. The mail would be protected by the sender’s rights pre-sending; both the sender’s and the recipient’s rights in the course of delivery; and by the recipient’s rights post-delivery. In contrast, there would be much less Fourth Amendment protection in the e-mail setting. Because e-mail usually takes only a few seconds to deliver, the government could just go to the ISP of the person sending the e-mail and take all of their outgoing e-mails right off the server. Real-time wiretapping would be regulated, but the government would have pretty free access to stored contents.

Further, the complaint appears to allege that the government obtained both outgoing e-mails and incoming e-mails. Even if you believe that the sender’s reasonable expectation of privacy disappears as soon as a copy of the e-mail is delivered, presumably that delivery would not eliminate the recipient’s reasonable expectation of privacy. Recall how this works in the physical letter context: The sender’s rights extinguish when the letter arrives, but the recipient’s do not. Even if you accept the Eleventh Circuit’s argument, it would seem to apply only to e-mail in Rehberg’s outbox, not the e-mail in his inbox.

IV. Some Final Thoughts

Three final thoughts. First, I think it would be a different case, or at least a potentially different case, if the government had obtained the e-mails from the ISPs of people Rehberg had been e-mailing. It’s possible to argue that Rehberg does not have any Fourth Amendment rights in the copies stored on the recipient’s servers: That issue requires answering a somewhat tricky issue of when e-mail is “delivered” for Fourth Amendment purposes, eliminating the sender’s reasonable expectation of privacy. (That issue is actually raised by the DOJ amicus brief in City of Ontario v. Quon; I’ll be blogging about that soon.)

Second, there’s a legitimate argument that the Fourth Amendment does not apply at all to contents, delivered or undelivered, based on a pure application of the third-party doctrine. I don’t read the Eleventh Circuit as trying to make that argument, but I disagree with that position in this forthcoming article.

Finally, my argument does not mean that Rehberg should have necessarily prevailed on his Fourth Amendment claim. The Stored Communications Act expressly allows some contents of communications to be compelled with a subpoena. See 18 U.S.C. 2703(b). Although I think that provision is generally unconstitutional, for reasons cited above, whether that is “clearly established” is of course another matter. Given that the officers have a qualified immunity defense, the officers may be entitled to qualified immunity even if using a subpoena to compel the contents of e-mail violated the Fourth Amendment.

Constitution (1, Insightful)

Anonymous Coward | more than 4 years ago | (#31495160)

So what does the 4th amendment of the constitution say about email? Did they even have the telegraph when that was passed? I doubt it.
The needs to be a new set of rules written and added to the constitution for the modern electronic digital age. (And passed by elected representatives (senate, congress) and not judges who were appointed last century.

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  • quote
  • ecode

"ecode" can be used for code snippets, for example:

<ecode>    while(1) { do_something(); } </ecode>
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