Tuesday, July 20, 2010

Reasonable Expectation

...of email privacy?

The Court held that Mr. Rehberg's privacy interest in his emails held by his ISP was not "clearly established" and therefore his claim against the prosecutors could not proceed. The Court relied on a legal doctrine called qualified immunity, which holds that lawsuits against government officials for violations of constitutional rights cannot proceed unless those rights were "clearly established" at the time. The Court declined to rule on whether individuals have a privacy interest in the content of their emails.

We're disappointed in this decision. Not only is it wrong for Mr. Rehberg, who had his emails turned over to a prosecutor based on a sham subpoena, but it's troubling for the millions of individuals in the Eleventh Circuit who have their email stored with ISPs. Our most sensitive and private thoughts, ideas and correspondence are contained in our emails. The Fourth Amendment requires judicial supervision (usually a warrant) before the government can access your personal papers in order to protect against just the sort of abuse that Mr. Rehberg suffered -- a rogue government official seeking get your emails from your ISP with no court oversight and then turning it over to others who seek to harm you.

While the decision is very bad news for Mr. Rehberg, the Court did take the opportunity to correct some erroneous analysis in the panel's previous decision. The earlier decision had held that the Fourth Amendment did not apply at all once an email was received by your ISP. The Court had written that 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" and that "Rehberg's voluntary delivery of emails to third parties constituted a voluntary relinquishment of the right to privacy in that information." This is not the law, and the incorrect statements are no longer precedent. In other words, the Court did not rule out the possibility that there is a reasonable expectation of privacy in your email. That is useful and will be important to other cases moving forward, as law professor Paul Ohm, who wrote an amicus brief in the case, has noted.
I'm firmly hold the belief that if you do it online, you shouldn't expect a high level of privacy in general.  It's the nature of the beast.  But I understand the need for determining the legal definition and precedents necessary for courts to rule on issues of internet privacy, and this ruling is faulty in so many ways it's very discouraging -- if not surprising.  The precedent has been set.  Defeatist?  Maybe.  Realist?  Yes.  In the age of endless "wars" on "terror" and high-tech national security concerns, our privacy online won't be coming back.

The road of warrantless surveillance is one we never should have taken.  But we did.

As a boss of mine at an old job once said:  Assume they are watching at all times, and you'll be okay.

And if you're want of losing sleep over a grand conspiracy theory, go buy this book, and it's sequels.

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