Ciceronian Review

Nothing Is Secret

In Rehberg v. Paulk, the 11th Circuit observed:

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. See Guest v. Leis, 255 F.3d 325, 333 (6th Cir. 2001) (An individual sending an email loses “a legitimate expectation of privacy in an e-mail that had already reached its recipient”); United States v. Lifshitz, 369 F.3d 173, 190 (2d Cir. 2004) (An individual may not “enjoy [] an expectation of privacy in transmissions over the Internet or e-mail that have already arrived at the recipient”); see also United States v. Perrine, 518 F.3d 1196, 1204-05 (10th Cir. 2008) (“Every federal court to address this issue has held that subscriber information provided to an internet provider is not protected by the Fourth Amendment’s privacy expectation”) (collecting cases).  Rehberg’s voluntary delivery of emails to third parties constituted a voluntary relinquishment of the right to privacy in that information. Rehberg does not allege Hodges and Paulk illegally searched his home computer for emails, but alleges Hodges and Paulk subpoenaed the emails directly from the third-party Internet service provider to which Rehberg transmitted the messages.   [at 21-22]

At the point of these remarks, the issue concerns the Fourth Amendment, not attorney client privilege.  Nevertheless, I wonder about this language.  It indicates that communications between lawyer and client via email are not protected.  Email always goes to an Internet Provider.  Virtually all Internet Providers retain email for a period as part of the overall process of transmission.  The Court here seems to be saying that there is no reasonable expectation of privacy in email once the email leaves the sender's computer.  IF that is so, then no attorney client privilege for email, no matter what the header, subject, or text may say.  Which would be a very serious problem.

The underlying cases seem to be built on the notion that there cannot be an objectively reasonable expectation of privacy once one understands the technical details of email transmission.  That seems to me a bad way to think about the issues.  Objectively reasonable should not be based on an understanding of the technical details of transmission or storage.  That standard should be based on what a reasonable person would believe in the situation, which should tie closely to the reasonable understanding of one in the situation.  Here, one is that people who use email believe.  Reasonable beliefs about the use of email should be closely connected to what people using email believe about email, not what technical experts believe. 

But maybe the standard for protecting privilege involves a completely different sense of reasonable expectation of privacy.  But I rather doubt it, and it may be a very big problem.

Update: I should note that there are a a number of opinions from bar and ethics organizations and decisions from courts saying there is a reasonable expectation of privacy in email.  Most recently, New Jersey's Supreme Court.

Black Hole Is Back

The big experiment is on again!  Soon we will either know more about the basic structure of the universe or be bits of a black hole.  It is in Europe, so must be part of a plot against the U.S., particularly the freedom loving Tea Party and  Palinites. 

I like the  Hubble more, because I like pretty pictures. 

I Got Mine

A long story about the tea party folk was on the front page of the Sunday NY Times.  An interesting study in inconsistency -- the interviewees seemed mostly to live on government largess.  The lead interviewee lives on disability checks, and others got by on their unemployment, Medicaid, and other welfare payments.  It was a striking story, and illustrative of a problem in lots of politics.  Palin is another example -- lots of talk about self-sufficiency and bad government, and so on, but Alaska is and always has been the king of welfare.  The state is the most socialist in the country, and would be in disastrous shape if not for very large federal subsidies.  The behavior is nutty, in the not at all technical sense that there is no way to reconcile the announced politics with the lives led.  It is a pervasive problem.  Big government is bad and can nothing right -- and what about the military?  All that bad government, then why police and where were all these people over the preceding 10 or 20 years?  Time after time, it comes to something like 'I deserve the hand-outs, not those other bums', no matter how it gets dressed up.  But, I doubt it matters.  These people, like most, are not interested in whether their views are coherent or consistent, and do not much care that what they say makes no sense.  For the academic -- think Hume. 

Canned

David Brooks' column in the NYT today elicited some nostalgia during the morning espressos.  The column is a thumbnail history of economics as a science or discipline.  The early years of struggle to found a science, phase two investigation of the mathematics of the rational agent in a market, and so on to the new 'behaviorist economics' and the future of economics as art.  Nostalgia because so much of the development he sketched as new, at the edge, etc., isn't.  All the problems of rational agents and the import of psychology and sociology on economics was the subject of extensive discussion and exploration back in the long dead days of 1980's, at least in graduate philosophy programs addressing political theory.  (And, by the by, Tversky is not an economist - his work is psychology.)  From which one might draw inferences about the superiority, etc., but I wouldn't.  I think the interesting aspect is that the work done in the philosophy departments never filtered out, or did so only decades later.  Another aspect of the silo effect is the paucity of attention paid in philosophy departments to either the Milgram experiments or the Stanford prison experiment.  One would think those studies tremendously important for moral psychology and for virtue theories.  Mostly, however, that work was ignored.  (John Dorris' Lack of Character, after all has only been out about 5 years.)  A lot of ideal theory, not so labeled, and no much consideration of how people live -- duty under despotism, that is what we need more of.

Watch the Pulpit?

I've been reading Freedom From Religion, and recently spent a little time talking with the author about the book.  The basic version of the book is argument for the conclusion that it is appropriate for police agencies to monitor speech in religious contexts where there is reason to think the religious speech may incite crime.  In other words, urging murder and mayhem is subject to surveillance whether or not in a house of worship.  The book is selling well, and the reviews suggest that it is highly controversial.  It is nicely written and a relatively smooth and fact read, but I missed the highly controversial part.  I am not much of a fan of state surveillance of speech to start with, but I still don't see why the suggestions are particularly troubling.  Limiting the discussion to the United States, I learned that there is some hesitancy on the part of the FBI and other agencies to involve themselves in monitoring speech in houses of worship.  This surprises me.  As I recall the trials connected with the Sanctuary movement in the 1980's the FBI and others had no qualms about infiltrating religious organizations or attending (undercover) meetings in religious houses.  (Sanctuary was about aiding refugees from the wars in Central America.)  Or, following the invasion of Iraq, the FBI seemed to have no qualms about infiltrating and monitoring Quaker anti-war groups, meeting in houses of worship.  I suppose there has been some great change in the climate, or is it just a facade?  Setting aside the historical issues, I don't see why religious speech should be treated with more care than political speech.  What sort of argument is there for such a difference in treatment?  Is there something special about what happens in a house of worship?  The Supreme Court suggested not in the Smith case, in which a worshiper was fired for full participation (eating peyote).  Is it some sort of slippery slope theory -- if the police start monitoring some church talk, then soon enough there will be pressure forcing the police to watch the folks in the christian churches?  If someone is talking about killing other people, whether because apostates or because they provide abortions, that is just the sort of talk that deserves monitoring. 

No Foot Unshot

As part of addressing the income shortfall for the state, the Utah legislature required the Department of Alcoholic Beverage Control to reduce hours of some stores and put off both remodeling and opening stores.  Along the lines of across the board budget cuts, I suppose.  But in this instance it is a bad idea because it further reduces state income.  In Zion, all sales of liquor, wine, and most beer is through state stores exclusively.  (And just in case anyone had doubts about it, the Legislature now requires that the stores' signs clearly include 'State' or 'State of Utah' before 'Wine Store'.)  The fact is, the wine stores not only make a significant amount of money for the state, the income has been rising.  So, reducing hours and so on do not save money -- the steps cost the state.  Retaining the same hours and expanding would increase income to the state.  But I suppose the money would be worth less, coming from the demon-controlled apostates and gentiles. 

Ideology is quite important to the Legislators -- we have statutes purporting to authorize eminent domain proceedings against federal lands, and barring federal law enforcement activity unless authorized by the state.  So much for the Constitution.

Watch the Piano

Yesterday the Supreme Court denied certiorari in Nurre v. Whitehead, a case about speech by high school students.  Alito dissented.  The Ninth Circuit had held that it was not improper for a high school to bar playing an 'Ave Maria" as part of a graduation performance.  The school claimed that the religious nature of the music was inappropriate for an event like a graduation.  The student involved thought that she should be allowed to play the piece, which was an instrumental piece (and so no recitation involved).  In dissent, Alito argued that the decision below was inconsistent with existing First Amendment law concerning high school students.  The graduation ceremony was more like a recital or play rather than an event with a compelled audience, and that the music was not religious in any interesting way.  The dissent is on the eloquent side for Alito.  But it has no mention of Bong-Hits-4-Jesus, in which Alito thought it fine for a school to punish students for speech outside of school at an event not sponsored or associated with the school, or the line of cases in which the Court has permitted school districts to prohibit shirts, armbands, pins, and other non-disruptive political speech.  In fact, the decision in Nurre is consistent with the ongoing evisceration of Tinker which Alito has participated in.