Chapter 20 - Third-Party Records and Data
Mining
Part I
Smith v. Maryland
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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?
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Letters?
His personal dwelling?
His dealings with his bank?
Does the Public's Expectation of Privacy
Match the Court's?
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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)
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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
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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
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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
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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)
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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?