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Editor: Kevin Cole
Univ. of San Diego School of Law

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Thursday, December 26, 2013

"Senders’ Fourth Amendment Rights in E-mails Seized from the E-mail Accounts of Recipients"

Orin Kerr has this post at The Volokh Conspiracy, commenting on a recent case. In part:

To understand the question, consider Fourth Amendment rights in postal letters. Before a letter is sent, only the sender has rights in the letter; during transmission, both the sender and recipient have rights in the letter; and once the letter is delivered at its destination, the recipient maintains Fourth Amendment rights but the sender’s rights expires. But how do you apply this to an e-mail? By analogy, a sender loses Fourth Amendment rights in the copy of the e-mail that the recipient has downloaded to his personal computer or cell phone. But does the sender have Fourth Amendment rights in the copy of the e-mail stored on the recipient’s server after the recipient has accessed the copy? And does the sender have Fourth Amendment rights in the copy of the e-mail stored on the recipient’s server before the recipient has accessed the copy? At what point does the sender’s Fourth Amendment rights in the sent copy expire?

 

http://lawprofessors.typepad.com/crimprof_blog/2013/12/senders-fourth-amendment-rights-in-e-mails-seized-from-the-e-mail-accounts-of-recipients.html

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Comments

I don't think comparing emails to postal mail is really the right analogy. Postal mail is a single item, sent in a sealed cover, that protects that single item from immediate view. An email is just a collection of data that is duplicated on another screen, and can be accessed anywhere or transmitted anywhere instantly. People's reasonable expectation of privacy on an email is diminished, because they know that the data is kept in the server and remains on the computer even after deletion, whereas a person reasonably expects that when a letter is sent by mail, that is the only copy that will ever exist

Posted by: David Moyse | Dec 27, 2013 1:15:41 PM

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