No email privacy rights under Constitution, US gov claims

You pronounce it 'sä-fə-strē'

No Constitutional Privacy

In arguing that the government did not necessarily need a wiretap order to obtain the contents of Mr. Warshak's email from his ISP, the government argued that the Fourth Amendment did not preclude a mere subpoena because users of ISPs don't have a reasonable expectation of privacy. The government argued:

... any expectation of privacy can be waived [citing case holding that a privacy disclaimer on a bulletin board "defeats claims to an objectively reasonable expectation of privacy."] Many employees are provided with e-mail and Internet services by their employers. Often, those employees are required to waive any expectation of privacy in their email each time they log on to their computers. [Court] orders directed to the email of employees who have waived any possible expectation of privacy do not violate the Fourth Amendment.

Now, we are not talking about cases where the employer reads someone's email and decides to give it to the government, or where the employer consents to the search by the FBI. Essentially, the Justice Department is arguing that when you give up your privacy rights in an e-mail policy vis-a-vis your employer, you waive any Constitutional claim to privacy if the government decides to just take it - even without the knowledge or consent of the employer. Once you give up privacy in an email policy, the game is over. Since the Fourth Amendment only protects legitimate privacy rights, and you have no privacy in email, theoretically (absent a statute that prohibits it) the government could constitutionally walk in and just take anyone's files.

Wow.

But then the government goes on: they note "some email accounts are abandoned, as when an account holder stops paying for the service and the account is cancelled." There "can be no reasonable expectation of privacy in such accounts." Oh really? So if I decide not to keep paying Comcast, then not only to I potentially lose Internet service, but the government can then read every email I ever wrote or received? Better pay the bill, then. When I terminate my service, I am terminating my right of use - not "abandoning" my privacy rights. A few years ago, when an US soldier was killed in Fallujah, Yahoo had to decide whether his parents could legally access the email in his account, an account that Yahoo's policy terminated at the soldier's death. The case was resolved with a consented to court order allowing such access, but the government's argument would be that when you die your account terminates and your email is up for grabs. In other words, don't die with email in your account and don't get any email after you die.

The government again goes on:

... hackers may obtain internet services and email accounts using stolen credit cards. Hackers maintain no reasonable expectation of privacy in such accounts.

So the privacy of your communications may be determined by the legitimacy of the method by which you pay for such communications? Bounce a check to the phone company and the government can listen in to your phone calls? Or buy a cell phone with a stolen credit card, and the government can read your text messages?




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