No Comment — November 2, 2009, 4:09 pm

Our Dwindling Email Privacy

What sort of privacy do you expect when you send an email? As Americans increasingly rely on the Internet for communication, Justice Department lawyers increasingly argue that Americans have no right to privacy there—notwithstanding repeated congressional efforts to bolster these rights. A recent case out of Oregon shows how the privacy expectation associated with emails and other Internet communications is being frittered away.

The government sought to subpoena the emails of a suspect in a criminal investigation. It issued a subpoena to Google, but it failed to give notice to the subscriber as the federal rules and statute would appear to require. The purpose of notice is fairly straightforward: it gives the subject the opportunity to contest the subpoena and puts him on notice of the government’s investigation. Implementing the protections of the Fourth Amendment, isn’t the subscriber entitled to notice? Not in the view of Judge Michael Mosman:

The Fourth Amendment protects our homes from unreasonable searches and seizures, requiring that, absent special circumstances, the government obtain a search warrant based on probable cause before entering. This is strong privacy protection for homes and the items within them in the physical world. When a person uses the Internet, however, the user’s actions are no longer in his or her physical home; in fact he or she is not truly acting in private space at all. The user is generally accessing the Internet with a network account and computer storage owned by an ISP like Comcast or NetZero. All materials stored online, whether they are e-mails or remotely stored documents, are physically stored on servers owned by an ISP. When we send an e-mail or instant message from the comfort of our own homes to a friend across town the message travels from our computer to computers owned by a third party, the ISP, before being delivered to the intended recipient. Thus, “private” information is actually being held by third-party private companies.

This feature of the Internet has profound implications for how the Fourth Amendment protects Internet communications-if it protects them at all. The law here remains unclear and commentators have noted that there are several reasons that the Fourth Amendment’s privacy protections for the home may not apply to our “virtual homes” online. First, it is uncertain whether we have a reasonable expectation of privacy in information sent through or stored by ISPs because the Fourth Amendment does not protect information revealed to third parties…
the defendants voluntarily conveyed to the ISPs and exposed to the ISP’s employees in the ordinary course of business the contents of their e-mails.

Mosman doesn’t say there is no Fourth Amendment right; he simply concludes that it doesn’t amount to much, because of the intermediate role of the ISPs. Although he couches his opinion narrowly, the result is effectively to eviscerate the Fourth Amendment. Mosman, a Mormon, is a Rove-era U.S. attorney in Oregon appointed to the bench by George W. Bush in 2003.

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