Expectation of Privacy Extended to Email

An anonymous reader writes "In a 6th circuit court decision [PDF] today 4th amendment expectation of privacy rights were extended to email. 'The ruling by the Sixth U.S. Circuit Court of Appeals in Ohio upholds a lower court ruling that placed a temporary injunction on e-mail searches in a fraud investigation against Steven Warshak, who runs a supplements company best known for a male enhancement product called Enzyte. Warshak hawks Enzyte using "Smiling Bob" ads that have gained some notoriety.'"

Re:too bad

[Jeff DeMaagd]

It's just a shame that the right decision comes down on the side of the spammer.

I think it's a dumb snake-oil product with a dumb ad campaign, but "spammer" is not the correct word to use as far as I know. Spam is not used to describe TV ads that help pay for what you are watching. The OED's definition is about bulk messaging over the Internet.

Re:How is email privacy currently violated?

[Anonymous Coward]

Be careful: under some circumstances, threatening to assassinate someone is a crime in and of itself, even if you don't intend to carry it out.

Re:too bad

[Constantine XVI]

Only if you don't run it through PGP or some other encryption program first

Telegraphs are the most analogous

[ahbi]

Whatever the law is for telegraphs should be the law for emails.
It is basically the same things 1s & 0s (long & short dashes) transmitted over copper wires (or fiber now a days) relayed by a machine or person (depending on the tech).
And even when relayed by a machine the Admin of the machine can read any email on the server. Email passes through multiple servers, at least the sending SMTP and the receiving POP/IMAP machines. I have no control over my ISP's POP server or the Admin thereof.

I assume there was no expectation of privacy in a telegraph and there should be none in an email. It would be nice, but it ain't how it works.

And now for some commentary from a real lawyer.
http://volokh.com/archives/archive_2007_06_17-2007 _06_23.shtml#1182181742 [volokh.com]

[Orin Kerr, June 18, 2007 at 11:49am] Trackbacks
Sixth Circuit Blockbuster on E-Mail Privacy: In an earlier blog post on a pending case in the Sixth Circuit, Warshak v. United States, I figured there was no way the court would get to the merits of the Fourth Amendment issue lurking in the case: there were no facts yet and no decided statutory law, and surely the panel wouldn't be so reckless as to presumptively strike down a federal statute in the absence of facts or law given the procedural problems with the case. I had a funny feeling things would turn out differently when I learned who was on the panel, though, and that funny feeling turned out to be justified: the panel just issued a blockbuster decision that tries to answer how the Fourth Amendment applies to e-mail (all without any facts, amazingly) based on arguments from amicus briefs that the government didn't address all in the context of an appeal from a preliminary injunction. Wow. More on the decision later today.

    UPDATE: Here's the key part of the opinion:

[Start Quote]
        [W]e have little difficulty agreeing with the district court that individuals maintain a reasonable expectation of privacy in e-mails that are stored with, or sent or received through, a commercial ISP. The content of e-mail is something that the user "seeks to preserve as private," and therefore "may be constitutionally protected." Katz, 389 U.S. at 351. It goes without saying that like the telephone earlier in our history, e-mail is an ever-increasing mode of private communication, and protecting shared communications through this medium is as important to Fourth Amendment principles today as protecting telephone conversations has been in the past. See Katz, 389 U.S. at 352 ("To read the Constitution more narrowly is to ignore the vital role that the public telephone has come to play in private communication.")
[End Quote]

Notably, the court's Fourth Amendent analysis combines aspects of the probabilistic, private facts, positive law and policy model (the above-quoted section being from the policy model section).

Re:Telegraphs are the most analogous

[Chris Burke]

I assume there was no expectation of privacy in a telegraph and there should be none in an email. It would be nice, but it ain't how it works.

Why do you assume that?

Granted, by the nature of the telegraph, you had to have an operator on each end to transmit/transcribe your message. With the exception of that pair of people, why would anyone expect that their message is not private? Certainly with regards to law enforcement -- I would assume there was an expectation that the telegraph operator would not hand your missive directly over to a law enforcement officer unless that officer had a warrant, and similarly an expectation that the nobody including the police would tap the transmission line and listen in on your message.

If there was a version of the telegraph which required no operators, then there would be no reason not to expect complete privacy.

But why pick the telegraph which has an obvious privacy-related flaw when we also have the example of the telephone? This is more apt because it does not have the same flaw as the telegraph, and because these days the machinery for transmitting voice data and email data is the same. Also it serves a similar function in that it's intended as a person-to-person form of communication. Do we have an expectation of privacy in phone calls as a matter of law? Yes! So should we with e-mail? Yes!

And you have that same "expectation of privacy" even if you are using an old-school easy-as-piss to overhear cordless phone. Just because it's easy to violate your privacy does not mean it is okay for people to do so. Just like when you send a postcard you have the same expectation. Sure, someone might read it, that's a practical reality. But as a legal reality neither police officers nor private detectives are allowed to pluck postcards from your mailbox and read them.

Mail and phone both have expectations of privacy, why should not email?

Re:This isn't much to get excited about

[Knara]

IANAL, but I seem to recall that courts across the US tend to use federal appeals courts decisions in other circuits in their rulings, since a precedent is a precedent. I suspect there are a great many issues that have been effectively decided for all practical purposes on a nation-wide by having appellate courts issue a decision and then later being cited that never make it to the supreme court.

In civil cases, all your email is discoverabable

[Christoph]

A magistrate judge ordered me to turn over all email requested by the other side in a federal civil lawsuit. This included email to my parents and my wife which discussed my feelings about the case, possible legal strategy, family member's health, etc.

I have come to understand that, in a civil case anyway, anything you document is discoverable (with the exception of communication between youself and an attorney and youself and an expert witness). I argued that the email was not relevant, but the courts are usually inclined to allow the other side to see it and decide for themselves. The other side got to pour over 500+ emails that have absolutely no relevant information.

details are here:vilana financial [cgstock.com]

Email != postcard

[Anonymous Coward]

It's preposterous to think that email is equivalent to a postcard, simply because it can be snatched seemingly from thin air by an enterprising computer user. Similarly, early cellphones and especially wireless phones were vulnerable to cheap receivers, but that didn't allow law enforcement the ability to sit on every other block with scanners in the 900 band. Simply because the information is transmitted publicly does not mean the information is public. Furthermore, phone calls could be intercepted in a variety of ways, encrypted or not, because they travel through systems owned by more than one company or individual.

Finally, to the "it's a telegraph and those aren't protected!!!" poster, do a little research and save us the trouble:

http://links.jstor.org/sici?sici=0026-2234(193706) 35%3A8%3C1383%3ACLUSAS%3E2.0.CO%3B2-7 [jstor.org]

It's not the information is easily intercepted, it's whether or not the communication itself carries a reasonable expectation of privacy. Get into JSTOR, read the article, and you'll see the court reversed it's decision.

Re:too bad

[pauljlucas]

I have an expectation of privacy when using a cordless phone, even though especially the old ones were trivial to listen in on.

No you don't. From here [ufl.edu] (among other places):

[I]n United States v. Smith, while conceding that nearly half of all American households use cordless telephones, the Fifth Circuit held that "pure radio communications" are not afforded the same Fourth Amendment protection as communications carried by land-based telephone lines because "broadcasting communications into the air by radio waves is more analogous to carrying on an oral communication in a loud [p138] voice or with a megaphone than it is to the privacy afforded by a wire."