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No email privacy rights under Constitution, US gov claims

You pronounce it 'sä-fə-strē'

The most distressing argument the government makes in the Warshak case is that the government need not follow the Fourth Amendment in reading emails sent by or through most commercial ISPs. The terms of service (TOS) of many ISPs permit those ISPs to monitor user activities to prevent fraud, enforce the TOS, or protect the ISP or others, or to comply with legal process. If you use an ISP and the ISP may monitor what you do, then you have waived any and all constitutional privacy rights in any communications or other use of the ISP. For example, the government notes with respect to Yahoo! (which has similar TOS):

Because a customer acknowledges that Yahoo! has unlimited access to her email, and because she consents to Yahoo! disclosing her email in response to legal process, compelled disclosure of email from a Yahoo! account does not violate the Fourth Amendment.

The government relied on a Supreme Court case where a bank customer could not complain when the government subpoenaed his cancelled checks from the bank itself and where the Court noted:

The checks are not confidential communications but negotiable instruments to be used in commercial transactions. All of the documents obtained, including financial statements and deposit slips, contain only information voluntarily conveyed to the banks and exposed to their employees in the ordinary course of business.

In essence, the government is arguing that the contents of your emails have been voluntarily conveyed to your ISP and that you therefore have no privacy rights to it anymore. In a previous proceeding in Warshak, the government went even further, arguing that automated spam filters, antivirus software, and other automated processes that examine the contents of your email, establish that you cannot possibly expect your communications to be private.

What is silly about this is the fact that, at least for the government, the argument is unnecessary. The Fourth Amendment protects against "unreasonable" invasions of privacy interests. The government could effectively argue that, by obtaining a subpoena or other court order for the records which are relevant to a legitimate investigation, the search or seizure is reasonable, and therefore comports with the Fourth Amendment. All subpoenas and demands for documents infringe some privacy interest, and unless overbroad, they are generally reasonable. The statute which permits government access to stored communication pursuant to a mere subpoena may likewise be perfectly reasonable and may withstand constitutional scrutiny. But that doesn't mean that the Constitution doesn't apply.

No, the government is seeking to eliminate any Constitutional privacy interest in email. Under this standard, if the FBI walked into your employer or ISP, and simply took your email (no warrant, no court order, no probable cause, no nothing), you would have no constitutional argument about the seizure, because you had abandoned your expectation of privacy. This appears to be more than a mere argument in support of the constitutionality of a Congressional email privacy and access scheme. It represents what may be the fundamental governmental position on Constitutional email and electronic privacy - that there isn't any.

And that, frankly, scares me.

This article originally appeared in Security Focus.

Copyright © 2007, SecurityFocus

Mark D. Rasch, J.D., is a former head of the Justice Department's computer crime unit, and specializes in computer crime, computer security, incident response, forensics and privacy matters as Managing Director of Technology for FTI Consulting, Inc.

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