Your private emails can be searched

How can that be, you ask? Actually, for some judges who don’t really understand the Internet and technology, it’s easy. According to them, after the email leaves your computer, it moves into the public arena and, because of that, you have no expectation of privacy.

Why is an expectation of privacy important?  Because the Fourth Amendment to the U.S. Constitution says “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.”  Courts have interpreted “unreasonable” (at least in part) as depending on whether or not you have a “reasonable expectation of privacy.”  This, then, depends on many things, including whether or not you are private.

Are your emails private? Well ….  Maybe. You might want to review (among other things) what GWU LawProf Orin Kerr says (he’s a former Justice Department prosecutor) in “Applying the Fourth Amendment to the Internet: A General Approach” (to be published shortly in the Stanford Law Review).

Abstract: This article offers a general framework for applying the Fourth Amendment to the Internet. It assumes that courts will seek a technology-neutral translation of Fourth Amendment principles from physical space to cyberspace, and it considers what new distinctions in the online setting can reflect the function of Fourth Amendment protections designed for the physical world. It reaches two major conclusions. First, the traditional physical distinction between inside and outside should be replaced with the online distinction between content and non-content information. Second, courts should require a search warrant that is particularized to individuals rather than Internet accounts to collect the contents of protected Internet communications. These two principles point the way to a technology-neutral translation of the Fourth Amendment from physical space to cyberspace.

Fortunately for us all, the appeals courts are divided. The 9th Circuit Court of Appeals (in California and the West) has ruled that email can be searched. The 2nd Circuit (in New York) has disagreed. You can expect this one to go to the U.S. Supreme Court. Anyone who uses gmail, hotmail or any similar mail service should pay attention.

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