Chapter 20 - Third-Party Records and Data Mining Part I

Smith v. Maryland Looking back at this case, what is the court really saying about a reasonable expectation of privacy? What does the court see within the ambit of a reasonable expectation of privacy? Is it really an original intent approach, i.e., is the court looking to what the founders through of as personally private? Has the Court always recognized a right of privacy beyond 4th amendment searches?

What would Jefferson have seen within the scope of privacy? Letters? His personal dwelling? His dealings with his bank?

Does the Public's Expectation of Privacy Match the Court's? If your employer can read it, can the government? Banking records? Transactions in general? Do you think the general public thinks their banking records are private? Their email? Their tweets? Why are transactions so valuable for intelligence? Should the use of encryption be seen as probable cause for the government to go after the contents of the communication?

Warshak v. U.S., 490 F.3d 455 (6th Cir.(Ohio) Jun 18, 2007) Plaintiff seeks a declaratory judgment (facial challenge) that the provisions of the Stored Communications Act (SCA) allowing administrative subpoenas to his ISP for his emails is unconstitutional. Plaintiff learned that emails had been released to the government and sought declaratory judgment and an injunction on behalf of himself and all other email users.

The Expectation of Privacy in Email Why are analogies between ISPs and the post office misguided? Why is there no expectation of privacy in bank records? How does this court see email as different from bank records? What about email in the hands of a recipient?

The Nature of the Expectation How much of this expectation of privacy is due to statutes? What if those changed? What if the court said they did not apply for national security investigations? Do you have an expectation of privacy if there are any exceptions?

The Contract with the ISP Why does the contract with the ISP matter? What about email on the employer's computer? What about email on the University system? Does it matter whether the ISP really looks at the email, or only has the right to? What about gmail - how is Google like the NSA when it comes to email?

Warshak v. U.S., 532 F.3d 521 (6th Cir.(Ohio) Jul 11, 2008) The appeals court vacated the previous opinion It applied an Abbott Labs analysis and rejected the facial challenge to the SCA It found that the plaintiff had not made a proper showing under Abbott of imminent harm It found that he had two ways of attacking the subpoenas Motion to exclude evidence Bivens action Are these satisfactory?