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E-Mail Not Protected by 4th Amendment, Judge Says

Update: Orin Kerr says he misread the opinion. Read his correction here.

The Fourth Amendment's protection against unreasonable searches and seizures does not apply to e-mail, a federal judge has ruled. The judge's reasoning would seem to sound a warning bell for anyone -- lawyers in particular -- not only who use Web-based e-mail accounts, but also who store documents of any kind online in "the cloud."

Orin Kerr, professor at George Washington University Law School, highlights the ruling and quotes from it at The Volokh Conspiracy, even though he says he disagrees with it.

The ruling from U.S. District Judge Michael W. Mosman in Oregon addresses the question of whether the government must notify someone when it obtains a search warrant to access the person's Web-based e-mail account. This case appears to have involved Google's Gmail.

The Fourth Amendment, Mosman writes, creates a "strong privacy protection for homes and the items within them in the physical world." But e-mail, he says, resides outside a person's home.

When a person uses the Internet, however, the user’s actions are no longer in his or her physical home; in fact he or she is not truly acting in private space at all. The user is generally accessing the Internet with a network account and computer storage owned by an ISP like Comcast or NetZero. All materials stored online, whether they are e-mails or remotely stored documents, are physically stored on servers owned by an ISP. When we send an e-mail or instant message from the comfort of our own homes to a friend across town the message travels from our computer to computers owned by a third party, the ISP, before being delivered to the intended recipient. Thus, "private" information is actually being held by third-party private companies.

Acknowledging that the law is unclear on the question of whether and to what extent the Fourth Amendment protects Internet communications, Mosman ties his decision to Google's privacy policy, which makes clear that Gmail users have no expectation of privacy, he concludes.

Here, the defendants voluntarily conveyed to the ISPs and exposed to the ISP’s employees in the ordinary course of business the contents of their e-mails. The Google privacy policy explicitly states that Google will share personal information of its subscribers when it has "a good faith belief that access, use, preservation or disclosure of such information is reasonably necessary to ... satisfy any applicable law, regulation, legal process or enforceable governmental request." Google Privacy Policy, http:// (last visited May 13, 2009). The court understands that other ISPs have similar privacy policies. ... Thus subscribers are, or should be, aware that their personal information and the contents of their online communications are accessible to the ISP and its employees and can be shared with the government under the appropriate circumstances. Much of the reluctance to apply traditional notions of third party disclosure to the e-mail context seems to stem from a fundamental misunderstanding of the lack of privacy we all have in our e-mails. Some people seem to think that they are as private as letters, phone calls, or journal entries. The blunt fact is, they are not.

Kerr disagrees with the decision. "I think e-mails are protected under the Fourth Amendment despite the third-party doctrine," he says, point to an article he wrote for the Stanford Law Review in which he makes this case.

The judge's reasoning would seem to extend beyond e-mail to any documents stored online. If there is no protection for an e-mail stored on the Gmail servers, it follows that there would be no protection for a document stored on the Google Docs servers. We can only hope that the case is appealed and that the appellate panel sides with Kerr.

Posted by Robert J. Ambrogi on October 29, 2009 at 11:15 AM | Permalink | Comments (9)


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