Technically Legal

De-FUD: 11th Circuit and E-Mail Privacy

A story on Slashdot today sounds pretty scary, “11th Circuit Eliminates 4th Amend. In E-Mail.” It points to a great article from the Volokh Conspiracy about an opinion by the 11th Circuit.

I just wanted to claify that it’s not really clear what this means yet. This wasn’t a criminal case, it was someone suing a state official for violating his constitutional rights. The Feds are still bound by the Stored Communications Act (which we’ve discussed here before), so this opinion will have little or no effect on Federal investigations. And this decision, which Orin Kerr argues persuasively is wrong, is only binding in the 11th Circuit, not other courts. The plaintiff here can still petition for a rehearing, a rehearing en banc (where the entire court hears the case), or even petition the Supreme Court for certiorari (which they wouldn’t be likely to grant, at least until another court disagrees with the 11th Circuit).

Comments Off Posted in: Analysis, Links on March 16, 2010

Another E-mail Privacy Case

The EFF has a great post up comparing the Oregon case we talked about on this week’s podcast with a New York case.

In the New York case the government conceeded that the e-mails were protected by the Fourth Amendment (something that wasn’t quite at issue in the Oregon case). There, the judge found the warrant, which allowed the police to get access to all the defendant’s e-mails was overbroad and invalid. But, the judge never decided if the Fourth Amendment protects e-mails.

It’s an interesting read, but I think we disagree with the EFF’s characterization of the Oregon case, and whether it actually decided that e-mails were unprotected by the Fourth Amendment.

Comments Off Posted in: Links on November 4, 2009