July 16, 2010 | By Cindy Cohn

Court Fails to Protect Privacy of Whistleblower's Email

Today the Eleventh Circuit issued an unfortunate amended decision in Rehberg v. Hodges. The case arose from an egregious situation in which, among other misconduct, a prosecutor used a sham grand jury subpoena to obtain the private emails of whistleblower Charles Rehberg after he brought attention to systematic mismanagement of funds at a Georgia public hospital.

The Court held that Mr. Rehberg's privacy interest in his emails held by his ISP was not "clearly established" and therefore his claim against the prosecutors could not proceed. The Court relied on a legal doctrine called qualified immunity, which holds that lawsuits against government officials for violations of constitutional rights cannot proceed unless those rights were "clearly established" at the time. The Court declined to rule on whether individuals have a privacy interest in the content of their emails.

We're disappointed in this decision. Not only is it wrong for Mr. Rehberg, who had his emails turned over to a prosecutor based on a sham subpoena, but it's troubling for the millions of individuals in the Eleventh Circuit who have their email stored with ISPs. Our most sensitive and private thoughts, ideas and correspondence are contained in our emails. The Fourth Amendment requires judicial supervision (usually a warrant) before the government can access your personal papers in order to protect against just the sort of abuse that Mr. Rehberg suffered -- a rogue government official seeking to get your emails from your ISP with no court oversight and then turning it over to others who seek to harm you.

While the decision is very bad news for Mr. Rehberg, the Court did take the opportunity to correct some erroneous analysis in the panel's previous decision. The earlier decision had held that the Fourth Amendment did not apply at all once an email was received by your ISP. The Court had written that a "person also loses a reasonable expectation of privacy in emails, at least after the email is sent to and received by a third party" and that "Rehberg's voluntary delivery of emails to third parties constituted a voluntary relinquishment of the right to privacy in that information." This is not the law, and the incorrect statements are no longer precedent. In other words, the Court did not rule out the possibility that there is a reasonable expectation of privacy in your email. That is useful and will be important to other cases moving forward, as law professor Paul Ohm, who wrote an amicus brief in the case, has noted.

However, the Court did not rule that there was privacy protection for your emails either. 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. With all due respect, email is far too important to the daily lives of millions of Americans for its constitutional status to be unclear. Email content must be protected by the Fourth Amendment whether stored with an ISP or not. It's long past time that the courts recognize that the constitutional privacy protections for our "papers" still apply when they are in digital form.

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