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The Police State and the Private: Electronic Communications Edition

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Motivated in part by how blithely some commenters in this thread seemed to accept the various pretexts used to eliminate any expectation of privacy from private electronic communications (“Of course the sexual life of senior government employees should be monitored because of the blackmail, giving the FBI that power has always worked out well!   But she sent some unkind emails!  They drove to work on a public road!”), I have a piece up about the drastic reforms that are obviously necessary:

The invasions of privacy in this case make the need for major changes in the law clear. First of all, the federal courts should make clear that there is the same Fourth Amendment right to privacy in electronic communication that there is in telephone calls. The government should have access to emails only after obtaining a warrant after the showing of probably cause. Cases like the investigation of Broadwell’s email—in which “evidence” of wrongdoing that would not be considered adequate cause if applied to snail mail was enough to obtain a warrant—should not go forward.

And much more needs to be done to protect the privacy of employees. A recent decision by the Supreme Court of Canada provides a valuable road map. “Canadians may therefore reasonably expect privacy in the information contained [workplace] computers, at least where personal use is permitted or reasonably expected,” wrote Justice Morris Day. This is the right approach. The Fourth Amendment should give government employees a presumptive expectation of privacy in their electronic communications, including those on workplace computers. And the privacy of private employees should have a similar expectation of privacy established by federal statute. The fact that emails and text messages are stored on third-party servers should not be used to immolate the privacy of individuals.

See also Julian Sanchez.

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