Earlier this year, we wrote about some Fourth Amendment questions when it came to information stored in the cloud — and a recent legal ruling provides some new troubling views on this matter. Slashdot points us to Orin Kerr’s excellent analysis of a recent 11th Circuit decision, that basically says once an email is delivered, there’s no Fourth Amendment protections of that email. But, as Kerr notes, the real problem here (as with so many issues in the digital world) is that the court seems to be confusing copies of digital content with the original:
For a real-world example, imagine you write a letter and photocopy it before you put it in the mail. You file the copy in your closet and send the original. During the course of delivery, the original is protected by the Fourth Amendment; when it arrives, you lose Fourth Amendment protection. But the fact that you lose Fourth Amendment protection in the original does not mean that the Government can break into your house and read the copy you made. Conversely, the fact that the recipient of the mail does not have Fourth Amendment rights in the copy does not mean that the government can break into the recipient’s house to read the original.For these reasons, the court should have analyzed access to the e-mails stored with the ISP based on whether there was a reasonable expectation of privacy in that remotely stored copy accessed, independently of delivery of another copy….
We see this over and over again when it comes to the digital world. People try to automatically equate it to the physical world, not recognizing that they’re dealing with independent copies, not the original (hence the argument that “file sharing is the same as theft.”) Unfortunately, in this case the ruling could do some serious damage to how the government and law enforcement views your expectation of privacy with regards to your emails.
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