No Expectation of Privacy When Using Email

In its most recent (July 30, 2010) opinion involving Forrester, the Ninth Circuit has affirmed that there is little expectation of privacy for Internet traffic, especially as to email to/from addresses. United States v. Forrester, 592 F.3rd 972 (9th Cir. 2010) (“Forrester”).  The court reviewed de novo whether the application for a wiretap of Mr. Forrester’s email was supported by a full and complete statement of the facts in compliance with 18 U.S.C. § 2518(1)(c).

This statute authorizes a judge to grant a wiretap if the application demonstrates that “normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous.” This is the necessity requirement for a wiretap and is intended to ensure that wiretaps are a last resort if traditional investigative techniques would not likely expose the crime. See United States v. Kahn, 415, U.S. 143, 153 n.12 (1974). The necessity requirement is also intended to ensure that wiretaps are not “used as the initial step in a criminal investigation.” United States v. Giordano, 416 U.S. 505, 515 (1974). However, officials need not exhaust every investigative technique before obtaining a wiretap. United States v. Commito, 918 F.2d 95, 98-99 (9th Cir. 1990).

In this case, the officials were seeking the identity of all members of the criminal conspiracy to operate a large Ecstacy-manufacturing laboratory in California through recording the to/from addressing of the email communications of Mr. Forrester and his coconspirator(s). The court that issued the wiretap did not abuse its discretion in issuing the wiretap.

The Supreme Court has routinely acknowledged that 18 U.S.C. § 2518 “prescribes the procedure for securing judicial authority to intercept wire communications,” Giordano, 416 U.S. at 507, and was enacted specifically to “meet the constitutional requirements for electronic surveillance enunciated . . . in [Berger] and Katz v. United States, 389 U.S. 347 (1967),” Mitchell v. Forsyth, 472 U.S. 511, 532 (1985) (internal quotations omitted). In this case, because of the lengthy and complete application, the wiretap did not violate (or constitute) a search within the Fourth Amendment which proscribes illegal searches and seizures.

In 2008, in its previous Forrester opinion, the Ninth Circuit referred specifically to email communication and stated:

“Neither this nor any other circuit has spoken to the constitutionality of computer surveillance techniques that reveal the to/from addresses of e-mail messages, the IP addresses of websites visited and the total amount of data transmitted to or from an account. We conclude that the surveillance techniques the government employed here are constitutionally indistinguishable from the use of a pen register that the Court approved in Smith. First, e-mail and Internet users, like the telephone users in Smith, rely on third-party equipment in order to engage in communication. Smith based its holding that telephone users have no expectation of privacy in the numbers they dial on the users’ imputed knowledge that their calls are completed through telephone company switching equipment. [internal cite ommitted].

“Analogously, e-mail and Internet users have no expectation of privacy in the to/from addresses of their messages or the IP addresses of the websites they visit because they should know that this information is provided to and used by Internet service providers for the specific purpose of directing the routing of information. Like telephone numbers, which provide instructions to the ‘switching equipment that processed those numbers,’ e-mail to/from addresses and IP addresses are not merely passively conveyed through third party equipment, but rather are voluntarily turned over in order to direct the third party’s servers. [internal citations omitted]……Second, e-mail to/from addresses and IP addresses constitute addressing information and do not necessarily reveal any more about the underlying contents of communication than do phone numbers. When the government obtains the to/ from addresses of a person’s e-mails or the IP addresses of websites visited, it does not find out the contents of the messages or know the particular pages on the websites the person viewed. At best, the government may make educated guesses about what was said in the messages or viewed on the websites based on its knowledge of the e-mail to/from addresses and IP addresses-but this is no different from speculation about the contents of a phone conversation on the basis of the identity of the person or entity that was dialed. Like IP addresses, certain phone numbers may strongly indicate the underlying contents of the communication; for example, the government would know that a person who dialed the phone number of a chemicals company or a gun shop was likely seeking information about chemicals or firearms.

Further, when an individual dials a pre-recorded information or subject-specific line, such as sports scores, lottery results or phone sex lines, the phone number may even show that the caller had access to specific content information. Nonetheless, the Court in Smith and Katz drew a clear line between unprotected addressing information and protected content information that the government did not cross here.”

the Ninth Circuit also previously stated that this “is the case which persuaded us not to push the privacy argument in our omnibus motion, since if there’s no right to privacy with regard to these issues when one’s rights are at their zenith in a criminal case, there can’t be a right to privacy in a civil case where the Fourth Amendment doesn’t apply.”

Thus, in the Ninth Circuit, it is advisable to use something other traditional email if you desire privacy in your communications.

One Comment - Leave a Comment
  • Barb L. -

    And this is exactly why everyone should be using something like TrulyMail or PGP to secure their email. If the email is encrypted, then you do have an expectation of privacy (and the benefits that brings with it).

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