Court Refuses To Protect Whistleblower's Email Uncovered In Sham Lawsuit

from the expectations-of-privacy dept

Tue, Jul 20th 2010 7:37pm — Mike Masnick

Earlier this year, we wrote about a troubling lawsuit involving a whistleblower, and an attempt to access his email. I'll repeat the EFF's summary of the case:

The whistleblower, Charles Rehberg, uncovered systematic mismanagement of funds at a Georgia public hospital. He alerted local politicians and others to the issue through a series of faxes. A local prosecutor in Dougherty County, Ken Hodges, conspired with the hospital and used a sham grand jury subpoena to obtain Mr. Rehberg's personal email communications. The prosecutor then provided that information to private investigators for the hospital and indicted Mr. Rehberg for a burglary and assault that never actually occurred. All the criminal charges against Mr. Rehberg were eventually dismissed. Hodges is currently running for Attorney General of Georgia....

Mr. Rehberg filed a civil suit against the prosecutors and their investigator for their misconduct, but the appeals court erroneously ruled that he did not have a reasonable expectation of privacy in his private email.

The EFF is now reporting that the Eleventh Circuit has basically ruled that, because Rehberg's "privacy interest" in his emails, as held by his ISP was not "clearly established" that he has no expectation of privacy. The key issue is whether or not there's an expectation of privacy in emails held by a third party -- in this case, the ISP. The court apparently clarified that it wasn't saying that there's no 4th Amendment protection for emails held by a third party ISP, but that it didn't really want to rule on that topic:

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.

While some are saying that at least this ruling gets rid of the bad earlier ruling that effectively said there was no 4th Amendment protections at all for emails held by an ISP, it does seem like the court could have, and probably should have, gone further to state that there is a reasonable expectation of privacy for such emails, and they deserve 4th Amendment protections.

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Filed Under: email, privacy, whistleblowing

19 Comments

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AW, 20 Jul 2010 @ 7:44pm

If they won't let people exercise the 4th, they are going to have people start exercising the 2nd.
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Paul, 20 Jul 2010 @ 7:55pm

this is why....
I run my own mail server. Originally I set it to get around stupid limits on how much email my ISP would allow me to have. Since then it has evolved to be something I can say is mine and maybe have some 4th Amendment protections to.
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Adam, 20 Jul 2010 @ 8:09pm

"...email is simply too new a technology for them to decide whether the Constitution applies"
And this is another reason why the court systems are in the state they're currently in.
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Richard, 20 Jul 2010 @ 8:24pm

System.exit(2);
What if you use SafeMail.com, or SecureMail.com ... I think you have a pretty strong expectation of privacy which is intrinsic to the name of the service.. Frankly, Email is 20+ years old, give me a break. If the judge feels that email is a mater of public information, perhaps he should declare that, hacking email accounts is impossible and therefore legal. If you have an option to NOT have a password, and choose to, well, then you have a reasonable expectation of privacy.

Yeah this one pisses me off.
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Jay (profile), 20 Jul 2010 @ 8:38pm

Ironically, using Wikileaks for the whistleblowing may have saved him more than this sham of a court...
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Anonymous Coward, 20 Jul 2010 @ 9:16pm

People, normal people should start to realize that emails and other electronic means are open by their own initial design and should not be trusted.

Powerful interests run contrary to people's rights and they should protect themselves, that is why you got wikileaks, onions, DC-Nets, PGP and a lot of other stuff out there.
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abc gum, 21 Jul 2010 @ 5:05am

Re:
Or he could've pasted letters from a newspaper to a piece of paper.
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imbrucy (profile), 21 Jul 2010 @ 5:45am

Re: System.exit(2);
Email is actually closer to 30 years old. The spec for SMTP was published in 1982. If that is still too new, it scares me to think what goes through the judges mind.
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out_of_the_blue, 21 Jul 2010 @ 6:05am

Judges protect the system, not individuals.
In the judge's mind, the interest of the surveillance state in being able to spy on citizens far exceeds any pesky "piece of paper" labeled "Constitution".

However, there's a far more direct crime of malicious prosecution: "The prosecutor then provided that information to private investigators for the hospital and indicted Mr. Rehberg for a burglary and assault that never actually occurred."

How the system really works is laid bare in this one piece: corrupt prosecutor does favor for commercial interest that's being exposed, and judges refuse to condemn any part of it.
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Anonymous Coward, 21 Jul 2010 @ 6:25am

Re:
Amen.
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Cowardly Annon, 21 Jul 2010 @ 7:32am

Too new? Seriously? They feel email is too new a technology? It's like 20 years old.

Even still, it's their job to understand the problem and come to a just solution. Dodging the question with the fake excuse that the technology is 'too new' is just total BS, and shows them to be lazy f***s.

So now I'm left wondering when email won't be 'too new' for a decision to be made. 2050 maybe.... *eyeroll*
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known coward, 21 Jul 2010 @ 7:55am

why isn't the prosecutor
up on charges of prosectorial misconduct? Forget privacy issues, how can a prosectutor gather evidence for a private investigation and get away with it?

There is a lot more criminality going on in that town than is mentioned in the report.
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Stephan Kinsella (profile), 21 Jul 2010 @ 8:06am

14th Amendment Problem
Mike, if I understand the facts right--this is is about whether the 4th amendment should apply to a state law issue. The problem is the 4th amendment is a limit on federal government power, not on the states. It doesn't limit the States any more than it limits Australia or China.

The only way to say it limits the States is to invoke the doctrine of "Selective Incorporation" based on the 14th Amendment--which is utter nonsense, of course. The idea that "due process"--which is procedural, also includes "substantive due process", which in turn "includes" "some" of the rights in the first 8 amendments to the Constitution to apply them to the States, is ridiculous.
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Georgia Lawyer, 21 Jul 2010 @ 8:33am

About that DA, Ken Hodges
Believe it or not, after resigning from office as DA, he ran for the office of Georgia Attorney General. Last night, he won the Georgia Democratic primary as the Democratic candidate. He should be disbarred, but instead he is being voted to a higher office.
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Anonymous Coward, 21 Jul 2010 @ 9:37am

Re: About that DA, Ken Hodges
Here's some details from the AJC. It gives some analysis on how the general election is expected to go.
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John Fenderson (profile), 21 Jul 2010 @ 10:20am

Re: 14th Amendment Problem
In other cases before federal courts [citation needed] the courts have ruled that anything that travels over the internet is legally interstate communication regardless of the origination and destination points. Therefore, the federal government has jurisdiction, not the states. Therefore, the Constitution applies.
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nasch (profile), 21 Jul 2010 @ 12:49pm

Re: 14th Amendment Problem
I have a hard time believing this. You're saying state and local police need not obey the 4th Amendment? That they can enter, seize and search any property they want at any time for any or no reason? Do you have any reference for that claim?
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Stephan Kinsella (profile), 21 Jul 2010 @ 1:03pm

Re: Re: 14th Amendment Problem
I didn't read it closely--I was not clear on hwether this was directed at state law or not. I thought it was.
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Stephan Kinsella (profile), 21 Jul 2010 @ 1:07pm

Re: Re: 14th Amendment Problem
The 4th Amendment ORIGINALLY did not apply to the states. Neither did the First--it says CONGRESS SHALL MAKE NO LAW... The States don't get their powers from the Constitution, but the federal government does. This was uncontroversial for the first 100 years. In fact a few states even had Congregationalism as the official state religion in 1791 when the First Amendment was ratified--no one thought it limited what the states coudl do, only the feds.

That doesn't mean the states were unlimited: they all have their own constitutions, which have little bills of rights.

After the Slaugtherhouse cases in the late 18th century said that the Privileges or Immunities clause of the 14th amendment did not incorporate a wide array of rights against the states, later on, the Court wanted ot start striking down state laws, so it did it by making up the idea that the Due Process clause of the 14th amendment has a "substantive" component which "incorporates" certain 'fundamental" rights in the Bill of Rights. The most recent was the McDonald gun rights case where they held that Heller's inteprration of the second amendment as protecting a personal right to bear arms, was "fundamental" and thus also applied to the States.
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