Home > Uncategorized > No 4th Amdt Protection for Backups & Delivered Email in 11th Circuit

No 4th Amdt Protection for Backups & Delivered Email in 11th Circuit

From Professor Orin Kerr, a terrific blog and analysis of the Eleventh Circuit’s recent decision in Rehberg v. Paulk, which held that there is no expectation of privacy in stored copies of delivered emails that are stored by your ISP. The Court cited Sixth and Second Circuit precedents to find no 4th Amendment protections for delivered email  (as Professor Kerr’s post indicates, however, the issue of when an email has been delivered is still unsettled).

Professor Kerr’s analysis focuses on the Court’s differing treatment of the email copy that was delivered vs. the backup copy of the email that was stored with the plaintiff’s ISP (just because the delivered copy lost protection, the ISP copy should not have).  While I agree, I also think that the Court’s decision might have been very different had they analyzed the issue under the Stored Communications Act, and not the 4th amendment. The SCA proscribes unlawful access to stored electronic communications, which it defines as:

“…any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof; and

any storage of such communication by an electronic communication service for purposes of backup protection of such communication;”

Under this definition, the email copy at issue in Rehberg should fall squarely within the backup exception to the SCA.

The Rehberg decision conflicts with the holding of the Ninth Circuit in Theofel v. Farey-Jones.  Here, the court found that copies of emails stored with an ISP post-transmission were protected from disclosure under the backup exception to the SCA.

Arguably, Rehberg has further complicated the split in the Circuits on privacy protection – statutory or under the 4th Amendment – for email.  It’s unclear when the Supreme Court will have a chance to review this particular issue.  Perhaps we will get some guidance from the Court’s upcoming review of USA Mobility Wireless Inc. v. Quon . Quon is a 9th Circuit case involving a related issue – the expectation of privacy in text messages.  The facts are complicated, since the case involves texts sent by a government employee, but it is one of the few decisions to find privacy protections for electronic communication.  This is definitely a case to watch next term, as a ruling in Quon will likely impact how courts view privacy for other electronic communications, especially email.

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