Last Thursday, the Eleventh Circuit handed down a Fourth Amendment case, Rehberg v. Paulk, that takes a very narrow view of how the Fourth Amendment applies to e-mail. The Eleventh Circuit held that constitutional protection in stored copies of e-mail held by third parties disappears as soon as any copy of the communication is delivered. Under this new decision, if the government wants get your e-mails, the Fourth Amendment lets the government go to your ISP, wait the seconds it normally takes for the e-mail to be delivered, and then run off copies of your messages.

In this post, I want to explain why the Eleventh Circuit’s position is wrong. I’ll start by explaining the argument’s origins in postal mail cases; I’ll turn next to Rehberg; I’ll then explain why I think the decision is based on a conceptual error; and I’ll conclude with some final thoughts.

I. The Source of the Argument: Fourth Amendment Protection in Postal Mail

To see where the 11th Circuit is getting this argument, you need to know a little bit about how the Fourth Amendment protects postal mail and packages. The Fourth Amendment ordinarily protects postal mail and packages during delivery. The same rule applies to both government postal mail and private delivery companies like UPS: As soon as the sender drops off the mail in the mailbox, both the sender and recipient enjoy Fourth Amendment protection in the contents of the mail during delivery. When the mail is delivered to the recipient, the sender loses his Fourth Amendment protection: The Fourth Amendment rights are transfered solely to the recipient. In practice, this works pretty simply: Each party has Fourth Amendment protection in the mail when they’re in possession of it, and both the sender and receiver have Fourth Amendment rights in the contents of the mail when the postal service or private mail carrier is holding the mail on their mutual behalf.

I should be clear that there are exceptions to these rules. For example, if a person sends a letter in what the Postal Service used to call “Fourth Class” mail — that is, mail that the Postal Service reserves the right to open — then it is not protected by the Fourth Amendment. See, e.g., Also, the Fourth Amendment protection only applies to the contents of the communication, not the outside. But the basic approach has governed postal mail privacy for a long time.

The new question is, how do to these principles apply to new communications technologies like e-mail and text messages? Unlike physical letters and packages, e-mails and text messages are just data. Communications technologies use digital networks that generate copies of the communications in the course of delivery. Those copies often stick around on servers when a copy of the communication reaches its destination. The Stored Communications Act provides statutory privacy protection to those communications stored on third-party servers, see 18 U.S.C. 2703. But does the Fourth Amendment protect those copies of communications as well? Right now the precedents are extremely sparse.

II. Rehberg v. Paulk

Enter Rehberg v. Paulk, decided by the Eleventh Circuit last week in an opinion by Judge Hull joined by Judges Carnes and Anderson. The case is kind of complicated, but here’s the relevant part. State investigators suspected Rehberg of a crime, and they allegedly used a state subpoena to obtain the contents of Rehberg’s e-mail from his Internet service provider, Exact Advertising. The complaint suggests that the government obtained both incoming and outgoing e-mails stored with Rehberg’s ISP; according to the complaint, investigators “obtained Mr. Rehberg’s personal e-mails that were sent and received from his personal computer.”

The charges against Rehberg were later dismissed, and Rehberg filed a lawsuit that claimed among other things that obtaining his e-mail with only a subpoena violated his Fourth Amendment rights. The defendants moved to dismiss under Rule 12(b)(6).

The district court denied the motion to dismiss without really analyzing the Fourth Amendment claim, but the Eleventh Circuit ruled that obtaining Rehberg’s e-mails with a subpoena did not violate the Fourth Amendment because e-mail, once delivered, is not protected by the Fourth Amendment:

The subpoenas covered information Rehberg had provided voluntarily to third parties and for which Rehberg did not have a legitimate expectation of privacy. Thus, the subpoenas did not violate Rehberg’s Fourth Amendment rights to be free of unreasonable search and seizure. In order for Fourth Amendment protections to apply, the person invoking the protection must have an objectively reasonable expectation of privacy in the place searched or item seized. The Supreme Court “consistently has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.” Smith v. Maryland, 442 U.S. 735, 743-44, 99 S.Ct. 2577, 2582, 61 L.Ed.2d 220 (1979). “[T]he Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.” United States v. Miller, 425 U.S. 435, 443, 96 S.Ct. 1619, 1624, 48 L.Ed.2d 71 (1976).

. . . 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 [the police] illegally searched his home computer for emails, but alleges [the police] subpoenaed the emails directly from the third-party Internet service provider to which Rehberg transmitted the messages. Lacking a valid expectation of privacy in that email information, Rehberg fails to state a Fourth Amendment violation for the subpoenas for his Internet records.

III. Why the Eleventh Circuit is Wrong

I think the Eleventh Circuit’s analysis is wrong. To see why, let’s start by considering Rehberg’s outgoing e-mails, which seem to be the focus of the Eleventh Circuit’s opinion. It is true that when information is disclosed to a third party, the Fourth Amendment no longer protects the information disclosed. That’s the teaching of Miller and Smith (and, for what it’s worth, and I think those teahcings are correct). But when many copies of information are made, you have to treat different copies differently. As a result, the fact that one copy of the communication has been received does not mean that all copies lose Fourth Amendment protection. As I explained in 2008:

Fourth Amendment rights are contextual. Data, whether in the form of numbers (like telephone numbers here) or text (in the case of a diary), does not have a preordained level of Fourth Amendment protection in the abstract. If you store your diary at home under your bed, you have Fourth Amendment rights in your diary because you have stored in it your home. If you go into the park and leave your diary out in the open, you lose Fourth Amendment rights in what you have left open because you have left it open. The Fourth Amendment rights derive from the steps that the government must go through to retrieve the information in context, not the essential nature of the data itself.

This means that you need to look at the government’s access to that particular copy of data, not just any copy of data. For a real-world example, imagine you write a letter and photocopy it before you put it in the mail. You file the copy in your closet and send the original. During the course of delivery, the original is protected by the Fourth Amendment; when it arrives, you lose Fourth Amendment protection. But the fact that you lose Fourth Amendment protection in the original does not mean that the Government can break into your house and read the copy you made. Conversely, the fact that the recipient of the mail does not have Fourth Amendment rights in the copy does not mean that the government can break into the recipient’s house to read the original.

For these reasons, the court should have analyzed access to the e-mails stored with the ISP based on whether there was a reasonable expectation of privacy in that remotely stored copy accessed, independently of delivery of another copy. Given that we’re only at the 12(b)(6) stage, and we don’t yet know all the facts, I don’t think we have any basis to conclude that Rehberg did not have a reasonable expectation of privacy in the e-mails obtained.

The conceptual error in Rehberg is in treating Fourth Amendment rights in the copy stored at the ISP as if it were the same as the Fourth Amendment rights in the copy that was delivered. I don’t think it works that way. The rules of Fourth Amendment protection are particular to each copy: The fact that one copy loses protection does not mean that the other copy loses protection. Indeed, just think about how differently the Fourth Amendment would apply to the postal network and e-mail under the 11th Circuit’s approach. In the postal mail setting, the government could never access postal mail without a warrant. The mail would be protected by the sender’s rights pre-sending; both the sender’s and the recipient’s rights in the course of delivery; and by the recipient’s rights post-delivery. In contrast, there would be much less Fourth Amendment protection in the e-mail setting. Because e-mail usually takes only a few seconds to deliver, the government could just go to the ISP of the person sending the e-mail and take all of their outgoing e-mails right off the server. Real-time wiretapping would be regulated, but the government would have pretty free access to stored contents.

Further, the complaint appears to allege that the government obtained both outgoing e-mails and incoming e-mails. Even if you believe that the sender’s reasonable expectation of privacy disappears as soon as a copy of the e-mail is delivered, presumably that delivery would not eliminate the recipient‘s reasonable expectation of privacy. Recall how this works in the physical letter context: The sender’s rights extinguish when the letter arrives, but the recipient’s do not. Even if you accept the Eleventh Circuit’s argument, it would seem to apply only to e-mail in Rehberg’s outbox, not the e-mail in his inbox.

IV. Some Final Thoughts

Three final thoughts. First, I think it would be a different case, or at least a potentially different case, if the government had obtained the e-mails from the ISPs of people Rehberg had been e-mailing. It’s possible to argue that Rehberg does not have any Fourth Amendment rights in the copies stored on the recipient’s servers: That issue requires answering a somewhat tricky issue of when e-mail is “delivered” for Fourth Amendment purposes, eliminating the sender’s reasonable expectation of privacy. (That issue is actually raised by the DOJ amicus brief in City of Ontario v. Quon; I’ll be blogging about that soon.)

Second, there’s a legitimate argument that the Fourth Amendment does not apply at all to contents, delivered or undelivered, based on a pure application of the third-party doctrine. I don’t read the Eleventh Circuit as trying to make that argument, but I disagree with that position in this forthcoming article.

Finally, my argument does not mean that Rehberg should have necessarily prevailed on his Fourth Amendment claim. The Stored Communications Act expressly allows some contents of communications to be compelled with a subpoena. See 18 U.S.C. 2703(b). Although I think that provision is generally unconstitutional, for reasons cited above, whether that is “clearly established” is of course another matter. Given that the officers have a qualified immunity defense, the officers may be entitled to qualified immunity even if using a subpoena to compel the contents of e-mail violated the Fourth Amendment.