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.