6th Circuit: Reasonable expectation of privacy in emailboxes

[Sean Donelan]

Filed today.  The Stored Communications Act gets a little more twisty.


http://www.ca6.uscourts.gov/opinions.pdf/07a0225p-06.pdf

On remand, the preliminary injunction should be modified to prohibit the
United States from seizing the contents of a personal e-mail account
maintained by an ISP in the name of any resident of the Southern
District of Ohio, pursuant to a court order issued under 18 U.S.C. '
2703(d), without either (1) providing the relevant account
holder or subscriber prior notice and an opportunity to be heard, or (2)
making a fact-specific showing that the account holder maintained no
expectation of privacy with respect to the ISP, in which case only the ISP
need be provided prior notice and an opportunity to be heard.


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[Ethan Ackerman]

This case is doubly twisty - for all the positive connotations of a
court actually applying the 4th amendment directly, notwithstanding
the terms of the SCA, the court does give the govt. a rather large
window to render this moot.  The Ct. of Appeals modified the
injunction so that searching can continue if the govt. can make a
showing that "the account holder maintained no expectation of privacy
with respect to the ISP..."

While this is a "no duh" condition on one level - no R.E.P. has always
= no 4th Amendment protection  - the "with respect to the ISP"
language is both the core question and simultaneously a little
troubling.  The core of this decision was that an email user has a
R.E.P. in email - so the unknown/fine print practices of the ISP
shouldn't function to determine whether Constitutional protection
exists....

If the ISP has an overly-disclosing service contract that says "we
reserve the right to monitor email for T.O.S. violations," but in
practice is a gargantuan service provider where .000004% of email is
ever reviewed by a human, why should that ISP's user suffer ?
Especially where a similar user of a 1000-customer rural dialup ISP
has no clear policy, or maybe even a policy that says "we don't
routinely monitor email" but as a practical matter .01% of emails are
reviewed in the course of providing service?

<editorial>
At the end of the day this just shows that the "objective" analysis
side of the 4th amendment test is busted in light of technology -
there's no activity that is "objectively" free of potential
survellance by some party.
</editorial>

-Ethan


On 6/18/07, Sean Donelan <sean@...> wrote:

> Filed today.  The Stored Communications Act gets a little more twisty.
>
>
> http://www.ca6.uscourts.gov/opinions.pdf/07a0225p-06.pdf
>
> On remand, the preliminary injunction should be modified to prohibit the
> United States from seizing the contents of a personal e-mail account
> maintained by an ISP in the name of any resident of the Southern
> District of Ohio, pursuant to a court order issued under 18 U.S.C. '
> 2703(d), without either (1) providing the relevant account
> holder or subscriber prior notice and an opportunity to be heard, or (2)
> making a fact-specific showing that the account holder maintained no
> expectation of privacy with respect to the ISP, in which case only the ISP
> need be provided prior notice and an opportunity to be heard.
>
>
> **********************************************************************
> For Listserv Instructions, see http://www.lawlists.net/cyberia
> Off-Topic threads: http://www.lawlists.net/mailman/listinfo/cyberia-ot
> Need more help? Send mail to: Cyberia-L-Request@...
> **********************************************************************
>

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