Posts Tagged ‘privacy’

The High Water Mark, Again

January 5th

On her morning CNBC show Suvannah Guthrie reported that a California court has now revisited the questions of privacy and personal communications. In the reported California case the judge took a radically different approach from the Ohio case that was decided in December. In California the court decided that the police did have the right to information on the cell phone of an arrested man.

Perhaps the Ohio case was too convoluted in the first place (the plaintiff had the expectation of privacy but the evidence that had been illegally attained was not needed for conviction.) But now there are two cases that would seem to disagree with one another. There will no doubt be a Supreme Court case someday soon that will explore the question of the individual’s right to privacy for emails and other electronic communications and it will be a highly charged one.

The idea that electronic communications would be less private than written ones or even phone calls is a huge precedent. A letter is protected by a whole apparatus of postal rules, regulations and inspectors. A court order is needed to open the mail. Yet in the electronic world, in California at least, if someone were arrested (suspicion of some crime such as illegal substances or DUI) and if their phone were taken from them, the information pathway that would be opened (email, phone calls, applications) could be enormous.

The comparison with the Postal Service is a sharp one. I remember at a dinner in 2000 hearing Scott McNealy, the Chairman of Sun Microsystems, make fun of a “letter” as a secure transmission. After all a letter is made of flimsy paper and sealed with spit and handed to a government employee, he noted. The capacity of electronic communications to provide a secure channel far exceeded anything that the Post Office could do, he argued. Certainly he is right.

But what if, in spite of the technological capacity of the medium to protect a communication, the law chooses not to do so?

The high water mark of Internet Communications lasted 2 weeks.

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Another HIgh Water Mark in the Internet Age

December 14th

In an important finding in the Court of Appeals in the Sixth Circuit today (December 14, 2010) the court found in favor of the government and against a man named Steven Warshak, his wife and his company. Warshak had argued that when the government had served a subpoena on his Internet Service Provider, NuVox, and obtained 27,000 emails that he had used to run his company (selling an herbal supplement that promised to enhance mail potency) that his constitutional rights had been violated.

The court found

“We find that the government did violate Warshak’s Fourth Amendment rights by compelling his Internet Service Provider (“ISP”) to turn over the contents of his emails. However, we agree that agents relied on the SCA in good faith, and therefore hold that reversal is unwarranted (Opinion page 14 and following)”

The government served a subpoena on the ISP to seize the emails in January of 2005 and Mr. Warshak did not find out about the seizure until the following year. He was found guilty of mail and wire fraud and sentenced to 25 years in jail. So in the Appeals Court he has argued strenuously that his Fourth Amendment Rights were violated. And the government responded that even if its search of the emails was unconstitutional, its agents relied upon the Stored Communications Act (SCA) (18 USC 2701) which says that the government can obtain stored communications and did so in good faith.

There is a great deal of complexity in the case and the history of whether the government properly complied with the SCA or not is gripping. Ultimately the Court says in effect “Mr. Warshaks rights were violated, but it doesn’t matter, he is guilty anyway.”

What is important about the case is the Court’s finding that substantially broadens the protections of the Fourth Amendment in an Electronic Age.

“The Fourth Amendment provides that “[t]he 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 . . . .” U.S.
CONST. amend. IV. The fundamental purpose of the Fourth Amendment “is to safeguard
the privacy and security of individuals against arbitrary invasions by government

The court found first that Mr. Warshak had the expectation of privacy and second that it was reasonable for society to recognize that expectation and to find in this case that the government’s actions were significant enough to have breached a constitutional protection. The court argued that in the case of a bank, no, and in the case of a phone company, yes. Here the key sentence becomes

“The Fourth Amendment must keep pace with the inexorable march of technological progress, or its guarantees will wither and perish.”

The court first reviews the 1877 protection of letter mail

“Letters and other sealed packages are in the general class of effects in which the public at large has a legitimate expectation of privacy[.]”); Ex Parte Jackson, 96 U.S. 727, 733 (1877). While a letter is in the mail, the police may not intercept it and examine its contents unless they first obtain a warrant based on probable cause. Ibid. This is true despite the fact that sealed letters are handed over to perhaps dozens of mail carriers, any one of whom could tear open the thin paper envelopes that separate the private words from the world outside. Put another way, trusting a letter to an intermediary does not necessarily defeat a reasonable expectation that the letter will remain private. See Katz, 389 U.S. at 351 (“[W]hat [a person] seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.”).

“Given the fundamental similarities between email and traditional forms of
communication, it would defy common sense to afford emails lesser Fourth Amendment

And there it is. This is a ruling that might have been expected at some point in the past 15 years since Netscape went public and the Internet took off. At some point there would be a finding that emails and letters should be seen on equal terms.

In an age of Wikileaks, however, does this doctrine of finding that an Internet Service Provider is the equivalent of the Post Office not have far reaching implications?

“If we accept that an email is analogous to a letter or a phone call, it is manifest
that agents of the government cannot compel a commercial ISP to turn over the contents of an email without triggering the Fourth Amendment.
An ISP is the intermediary that makes email communication possible. Emails must pass through an ISP’s servers to reach their intended recipient. Thus, the ISP is the functional equivalent of a post office or a telephone company. As we have discussed above, the police may not storm the post
office and intercept a letter, and they are likewise forbidden from using the phone system
to make a clandestine recording of a telephone call—unless they get a warrant, that is.
See Jacobsen, 466 U.S. at 114; Katz, 389 U.S. at 353. It only stands to reason that, if
government agents compel an ISP to surrender the contents of a subscriber’s emails,
those agents have thereby conducted a Fourth Amendment search, which necessitates
compliance with the warrant requirement absent some exception.”

In the end the court found that citizens should have an constitutionally protected expectation of privacy even if it’s not reasonable to imagine that such privacy could be insured.

“Therefore, because they did not obtain a warrant, the government agents violated
the Fourth Amendment when they obtained the contents of Warshak’s emails.
Moreover, to the extent that the SCA purports to permit the government to obtain such
emails warrantlessly, the SCA is unconstitutional.”

Perhaps Mr. Warshak will appeal. Perhaps the Supreme Court will hear the case. But there is little question that as the tide comes in and further defines the electronic age, another high water mark has been reached.

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