Fourth Amendment

Although it almost got by me, earlier this week, I learned that last Friday marked the 50^th anniversary of the arrest of Jerry Garcia and other members of the Grateful Dead down in New Orleans. On the evening of January 31, 1970, the Dead played a show with Fleetwood Mac at the Warehouse in New Orleans. After the show, the Dead went back to their hotel, only to find the police searching their hotel rooms pursuant to a search warrant. According to reports that I read, police arrested a total of 19 people, and ultimately charged them with possession of various drugs and other unlawful items. After posting bail, the Dead were nearly out of money, so they scheduled a bonus show for the purpose of raising money to hire lawyers to defend them. Fortunately for the Dead, hiring good lawyers paid off; all charges were eventually dismissed and the experience inspired the Dead to write Truckin, including the line, “if you got a warrant, I guess you’re gonna come in.”

As white collar lawyers, we routinely deal with cases involving search warrants. In fact, a major part of our pretrial motions practice involves litigating search warrant challenges. Over the years, we have challenged search warrants involving searches of businesses, residences, vehicles, computers, and other devices.

But in the last few years, we have spent a great deal of time working on cases in which federal prosecutors have obtained search warrants to gather the entire contents of an individual’s email account, and other electronic data. The search warrants federal prosecutors use in these cases involving searches for electronic data are different than typical search warrants in several ways.

Last week in Rehberg v. Paulk, the Eleventh Circuit held that sending “emails to third parties constitute[s] a voluntary relinquishment of the right to privacy in that information.” In this case, the investigators subpoenaed the emails directly from the Internet Service Provider (ISP) through which Rehberg transmitted his messages. The Court held that he did not have a valid expectation of privacy in the email information, so he failed to state a Fourth Amendment violation.

This ruling might be a dangerous precedent, for several reasons. First, the Court of Appeals says that none of us has any privacy in our emails the moment we hit the ‘send’ button. Second, this means that the government can get our otherwise private messages from every ISP we use to connect us with the outside world. This ruling represents one more step towards a lack of privacy, and in favor of the government’s ability to intrude into our lives.

The opinion in Rehberg v. Paulk is here.

Articles Posted in Fourth Amendment

The Grateful Dead, the Fourth Amendment, and Good Lawyering

Eleventh Circuit Holds No Expectation of Privacy in Delivered Email Messages