No Privacy in Emails?!

Posted On: March 17, 2010 by Kish & Lietz

Eleventh Circuit Holds No Expectation of Privacy in Delivered Email Messages

Last week in Rehberg v. Paulk, the Eleventh Circuit held that sending “emails to third parties constitute[s] a voluntary relinquishment of the right to privacy in that information.” In this case, the investigators subpoenaed the emails directly from the Internet Service Provider (ISP) through which Rehberg transmitted his messages. The Court held that he did not have a valid expectation of privacy in the email information, so he failed to state a Fourth Amendment violation.

This ruling might be a dangerous precedent, for several reasons. First, the Court of Appeals says that none of us has any privacy in our emails the moment we hit the ‘send’ button. Second, this means that the government can get our otherwise private messages from every ISP we use to connect us with the outside world. This ruling represents one more step towards a lack of privacy, and in favor of the government’s ability to intrude into our lives.

The opinion in Rehberg v. Paulk is here.
A lengthy analysis by Orin Kerr on why the Eleventh Circuit got this wrong is here at the Volokh Conspiracy.

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Posted In: Criminal Justice Issues , Eleventh Circuit Court of Appeals , Federal Criminal Law News , Fourth Amendment

Comments

[Judith]

I'm more concerned about the implications of this with respect to my reasonable duty of care to my clients. We do almost all of our communication with our clients via email. Many of the documents (license drafts, patent applications, etc.) that I send are confidential. If I have no reasonable expectation of privacy in those emails, am I breaching my fiduciary duty when I hit "send"?

[Law school grad]

The court is saying that once information is voluntarily relinquished to third parties, those parties can be subject to a subpoena request.

Any potential witness can already be subjected to a subpoena request and forced to reveal conversations that occurred under an expectation of confidentiality. Here the records involved emails held by an internet service provider, not the memories of a witness. I don't see any more threat to privacy here than from other subpoenas that seek previously confidential, but not privileged, information from third parties.

The situation that Judith discusses would be different because her communications would be privileged, not merely confidential.

[Judith]

Privilege doesn't work that way, that is the concern. The usual rule is that "if the confidential nature of the communication is not maintained, and it is disclosed it to individuals outside of the attorney-client relationship, then the privilege is waived." Since I am sending it to a third party, and the 11th circuit held this to be a release to a third party without expectation of privacy, I can't see how the confidential nature is considered maintained in this scenario.

[Law school grad]

After rereading that case, I still am unclear on one key fact: were the emails in question sent to a third party outside the attorney-client relationship, and thus no longer privileged? Did the investigators merely subpoena them from the ISP instead of the 3rd party? Or were these emails to an attorney or privileged recipient, and the privilege was lost only because the communications passed through the ISP?

The second situation raises new concerns. The first doesn't since the communications still would have lost privileged status and could have been obtained directly from the 3rd party recipient.