Eleventh Circuit Decision Largely Eliminates Fourth Amendment Protection in E-Mail

“Last Thursday, the Eleventh Circuit handed down a Fourth
Amendment case, Rehberg v. Paulk, that takes a very narrow view of
how the Fourth Amendment applies to e-mail. The Eleventh Circuit
held that constitutional protection in stored copies of e-mail held
by third parties disappears as soon as any copy of the
communication is delivered.

“Under this new decision, if the government wants get your
e-mails, the Fourth Amendment lets the government go to your ISP,
wait the seconds it normally takes for the e-mail to be delivered,
and then run off copies of your messages.

“In this post, I want to explain why the Eleventh
Circuit’s position is wrong. I’ll start by explaining
the argument’s origins in postal mail cases; I’ll turn
next to Rehberg; I’ll then explain why I think the decision
is based on a conceptual error; and I’ll conclude with some
final thoughts.”

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