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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.
More from Scott Horton:
Conversation — August 5, 2016, 12:08 pm
Sidney Blumenthal on the origins of the Republican Party, the fallout from Clinton’s emails, and his new biography of Abraham Lincoln
Conversation — March 30, 2016, 3:44 pm
Joseph Hickman discusses his new book, The Burn Pits, which tells the story of thousands of U.S. soldiers who, after returning from Iraq and Afghanistan, have developed rare cancers and respiratory diseases.
Years ago, I lived in Montana, a land of purple sunsets, clear streams, and snowflakes the size of silver dollars drifting through the cold air. There were no speed limits and you could legally drive drunk. My small apartment in Missoula had little privacy. In order to write, I rented an off-season fishing cabin on Rock Creek, a one-room place with a bed and a bureau. I lacked the budget for a desk. My idea was to remove a sliding door from a closet in my apartment and place it over a couple of hastily cobbled-together sawhorses.
Annual premium on a $6,000 life insurance policy for a champion German shepherd:
Astronomers discovered a pulsar called a superbubble, which spins 716 times per second.
Nigerian president Muhammadu Buhari told reporters that his wife “belonged to” his kitchen.
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“Matt was happy enough to sustain himself on the detritus of a world he saw as careening toward self-destruction, and equally happy to scam a government he despised. 'I’m glad everyone’s so wasteful,' he told me. 'It supports my lifestyle.'”