Earlier this year, we wrote about a troubling lawsuit involving a whistleblower
, and an attempt to access his email. I'll repeat the EFF's summary of the case:
The whistleblower, Charles Rehberg, uncovered systematic mismanagement of funds at a Georgia public hospital. He alerted local politicians and others to the issue through a series of faxes. A local prosecutor in Dougherty County, Ken Hodges, conspired with the hospital and used a sham grand jury subpoena to obtain Mr. Rehberg's personal email communications. The prosecutor then provided that information to private investigators for the hospital and indicted Mr. Rehberg for a burglary and assault that never actually occurred. All the criminal charges against Mr. Rehberg were eventually dismissed. Hodges is currently running for Attorney General of Georgia....
Mr. Rehberg filed a civil suit against the prosecutors and their investigator for their misconduct, but the appeals court erroneously ruled that he did not have a reasonable expectation of privacy in his private email.
The EFF is now reporting that the Eleventh Circuit has basically ruled that, because Rehberg's "privacy interest" in his emails, as held by his ISP was not "clearly established" that he has no expectation of privacy
. The key issue is whether or not there's an expectation of privacy in emails held by a third party -- in this case, the ISP. The court apparently clarified that it wasn't saying that there's no 4th Amendment protection for emails held by a third party ISP, but that it didn't really want to rule on that topic:
Rather than embracing the obvious conclusion that our constitutional protections need to be recognized for email content, the court ducked the question, claiming that email is simply too new a technology for them to decide whether the Constitution applies.
While some are saying that at least this ruling gets rid of the bad earlier ruling
that effectively said there was no 4th Amendment protections at all for emails held by an ISP, it does seem like the court could have, and probably should have, gone further to state that there is a reasonable expectation of privacy for such emails, and they deserve 4th Amendment protections.