The law governing the privacy of e-mail and internet communications continues to develop. Attempts by the government to obtain access to e-mails and website information have recently raised these privacy issues. As discussed in the June 28, 2007 posting “Does the Constitution Protect the Privacy of Your E-mails?,” the Sixth Circuit’s decision in United States v. Warshak appeared to recognize that individuals and businesses may have protected privacy interests in the contents of e-mail communications. According to the Ninth Circuit in United States v. Forrester, 2007 WL 1952390 (9th Cir. 2007), however, this expectation does not extend to all information connected with electronic communications. According to the court, certain aspects of electronic communications – to/from address information, website addresses, and the amount of data transferred – do not raise Fourth Amendment or other privacy issues. While the decisions themselves deal with the government’s ability to access e-mail information, the implications of the rulings may affect how e-mail is dealt with by companies and individuals in both civil and criminal contexts.
In Forrester, the Ninth Circuit dealt with the constitutionality of certain computer surveillance techniques. The government indicated Forrester and Alba on one count of conspiracy to manufacture Ecstasy. As part of its investigation, the government employed various methods to monitor Alba’s e-mail and internet activity, including installing what the court described as a “pen register analogue” on Alba’s computer. The only data obtained were the to/from addresses of Alba’s e-mail messages, the IP addresses of websites he visited, and the total volume of information sent to or from his computer account.
Although decided after Warshak, the Ninth Circuit indicated that it was unaware of any other decisions by federal appellate courts addressing the constitutionality of such surveillance techniques. The court went on to hold that surveillance of e-mail and website addresses was conceptually indistinguishable from government surveillance of physical mail or telephone calls. The Supreme Court has previously held that while the contents of mail and phone calls are protected, the address and telephone number information is not entitled to protection because that information is voluntarily disclosed to third parties. Accordingly, the court held that the government’s monitoring of Alba’s e-mail to/from address information and website addresses was not a search for Fourth Amendment purposes.
In the wake of Warshak and Forrester, it appears that a consensus may be developing in the federal courts. Users have no reasonable expectation of privacy in the to/from addresses of e-mails, the IP addresses of the websites they visit, or the size of the e-mails they send or receive.
Full Opinion text –
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/F0E09BB37A97D51A88257310004D1DAC/$file/0550410.pdf?openelement