Eleventh Circuit Decision Largely Eliminates Fourth Amendment E-mail Protections

Orin Kerr writes:

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.

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