A federal court in San Francisco on December 5th, approved of the government’s interception and use of emails and other communications in a terrorism case involving the so-called Portland Christmas Tree Bombing case.  In that case a Somali-American was caught plotting a bombing on the Christmas tree lighting after his parents repeatedly asked the FBI to investigate his suspicious activities.

In doing so, the Court created an exception to the requirement that a warrant be obtained to read emails that is so broad that, in the future, it’s possible that the government could read anyone’s emails.   It takes what’s called the “third party doctrine” and expands is so broadly as to virtually eliminate any privacy in any communications.

During the course of their investigation, the government obtained a warrant under the Foreign Intelligence Surveillance Act (FISA) to intercept and read the emails of some foreign national overseas.

Well, not really overseas – the foreign national was overseas – the interception done right here in the US of A.  No matter.  Under Section 702 of the FISA law, the government was monitoring the foreigner’s communications, and “inadvertently” came across those of the Somali teenager.  This lead to the issuance of a FISA order to the teenager, and the interception of his emails, even though he was definitely a U.S. person under the law.

The defendant unsuccessfully challenged the government’s assertion that the interception of his emails was “inadvertent” noting that “surveillance of U.S. persons’ communications under § 702 is not “incidental” because the monitoring of communications foreign targets and U.S. persons was specifically contemplated and to some degree desired. We agree that such communications were anticipated. … [but t]he fact that the government knew some U.S. persons’ communications would be swept up during foreign intelligence gathering does not make such collection any more unlawful in this context than in the Title III or traditional FISA context.”

The court also rejected the argument that the volume of data collected “incidentally” could exceed that collected deliberately did not make the collection any less “incidental”

The XYZ Affair

The court next likened the privacy interest in email communications to that of ordinary postal letters “Accordingly” the court surmised, “until electronic communications reach the recipient, they retain the same level of privacy interest as if they were still in the [sender’s]  home.”  Fair ‘nuff.

But then the Court went on to assert that  “as with letters, “[a] person’s reasonable expectation of privacy may be diminished in ‘transmissions over the Internet or e-mail that have already arrived at the recipient.’ “[Users] would lose a legitimate expectation of privacy in an e-mail that had already reached its recipient; at this moment, the e-mailer would be analogous to a letter-writer, whose ‘expectation of privacy ordinarily terminates upon delivery’ of the letter.” (citations to other cases omitted).

Now, of course when you send someone a letter, you run the risk that the recipient may make it public.  When you talk with someone over the phone, you run the risk that (if in a one party consent state) they will record it and make it public, or (if in an all party consent state) they might tell others about the conversation.   That goes along with Benjamin Franklin’s observation that “two may keep a secret provided one is dead.”

But that’s not what happened here.  The court admits that the law on privacy of transmitted communications deals with “a diminished expectation of privacy due to the risk that the recipient will reveal the communication, not that the government will be monitoring the communication unbeknownst to the third party,” but then jumps to the conclusion that  “the communications at issue here had been sent to a third party, which reduces [the defendant’s]  privacy interest at least somewhat, if perhaps not as much as if the foreign national had turned them over to the government voluntarily. “

See what did the Judge do there??

So here’s the takeaway from this case.  When you send an email you have an expectation of privacy.  But when that email is received, you run the risk that the recipient will disclose the contents, and therefore you have a diminished expectation of privacy – EVEN IF the recipient never disclosed it.  If you didn’t want it to be secret, you should never have sent it.  So private communications are not private because – well, because they are communications.

Of course, the Court could have said that by communicating with someone overseas, the Portland defendant ran the risk that that person was under surveillance, or some such argument.  But the court ruled that the mere act of sending an email diminishes your privacy interest in the contents of that email because someone else COULD have (but didn’t) revealed it to the cops.  And leaving your sister in the house diminishes your expectation of privacy because she COULD have (but didn’t) invite the cops in.

If other courts adopt this rationale, then there’s virtually nothing left of the Fourth Amendment.  The issue is not whether a third party consented, but whether they COULD have consented.  And if they could have, then they need not.  It puts privacy on its head, and is a misinterpretation of the concept of the “invited ear.”  The invited ear doctrine says that if you invite someone else to listen in on your conversation, and that person turns over the contents to the police, you can’t complain.  But the key here is INVITED.  Just because I invited Maude to listen in doesn’t mean that the cops can.  The essence of privacy is control.

Now, if I mail you a letter and the cops get a warrant to search your house and find my letter – well, I likely have little chance to complain.  It’s like that Jerry Seinfeld routine about when clothes become “laundry” and when they become clothes again.  A magazine becomes “mail” when I stick a stamp on it and put it in the mailbox.  It becomes a magazine again when you get it in the mail and plop it on your table.  But this doesn’t mean that the police can read your mail or mine because at some point it won’t be mail.

The court is correct that a warrant served on the recipient of email diminishes the privacy rights of the sender, just as the warrant executed at the recipient of mail generally extinguishes the privacy rights of the sender of mail.  But online the email tends to stay where it is – more like a dead drop than a physical transfer.  The problem with analogies are that they are as imperfect as a square peg in a round hole.  And they are little basis for litigation.

The sender lost his privacy rights NOT because he sent the email to a third party and that act diminished his privacy right.  He lost his privacy right because the government had a warrant addressed to the third party for the inbound email – which “belonged” (yeah another bad analogy) to the recipient.

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