E-mails Aren’t Private? Oh-oh…

The Eleventh Circuit Court of Appeals has ruled in the case of Rehberg v. Paulk that one who sends an e-mail has no “expectation of privacy” in its content, once it is sent to a third party—-and that third party can even be the internet service provider. Which means, in essence, that e-mails aren’t private any more, if this ruling stands.

Here you have a good example of how courts can re-define formal ethical standards on multiple planes with a few words. This means that one of the most influential Federal Courts has given the green light to any government agency or employer who chooses to read your e-mails. It may well be that lawyers who send documents containing confidential client information have breached their duty to protect confidences. It means that if your room-mate reads confidential messages on your laptop without your permission, the law says its your fault, not his.

This is the point where ethics, manners and the Golden Rule becomes more important than ever. The court case may change the law, and it may be legal to read other people’s e-mails without permission, but it’s still not right.

For an excellent scholarly dissent from the Eleventh Circuit’s ruling by Prof. Orrin Kerr, see his argument on the Volokh Conspiracy.

[Many thanks to Prof. Monroe Freedman whose post at the Legal Ethics Forum alerted me to both the case and Prof. Kerr’s critique.]

2 thoughts on “E-mails Aren’t Private? Oh-oh…

  1. Jesus summed up so much in His amazingly simple standard of conduct called the Golden Rule.

    When I teach Police Dynamics we promote 49 character qualities as defined by the Character Training Institute. A police officer attending one of my classes said, “All this character stuff can be summed up in the Golden Rule…” How true.

    Think about it this way: Do you want others to be truthful in their dealings with you? Then be truthful with them. Do you want others to be dependable in their dealings with you? Then be dependable with them. Do you want others to be punctual? Then be punctual. Courteous? Be courteous?

    And then to the point of your post: Do you want others to respect your privacy? Then respect theirs…

    Sheriff Ray

  2. I always wonder about rulings like this. I wonder if the judge doesn’t like the fourth amendment and is trying to erode it as much as possible, or are they completely ignorant about how e-mail works?

    I pay a service to deliver, send, store, and not read my e-mail. If they were going to read it, I would not pay them, but use the e-mail server on my home computer. Does this mean that if I run my own e-mail server, they can hack my computer and read the e-mails if they have a subpoena? Can they seize my computer without a warrant because computers aren’t granted the same protections as any other property? This doesn’t even make sense. For a more direct extension, what about off-site backup services that backup sensitive information. Is that now no longer protected either. It is pretty much the same as e-mail in that regard. Does this mean that all sensitive information needs to revert back to paper documents?

    I have noticed that almost all rights that people had with traditional documents have been eliminated in their modern counterparts. I really wonder if there are judges left who really care about the spirit of our foundational laws?

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