Tech Law & Policy Clinic Helps Convince Court to Restore Email Privacy

Professor Paul Ohm and a group of students in the Samuelson-Glushko Technology Law & Policy Clinic wrote and filed a brief on behalf of leading information privacy and criminal procedure scholars asking the U.S. Court of Appeals for the Eleventh Circuit to reconsider its earlier decision removing Fourth Amendment privacy protection from e-mail. This morning, the panel of the Court that made the original ruling replaced its opinion with a more nuanced, detailed, multi-page discussion. Read the Rehberg v. Paulk opinion.

The opinion seems to draw heavily from, although it does not cite, the amici brief.

The Eleventh Circuit no longer holds that "A person also loses a reasonable expectation of privacy in emails, at least after the email is sent to and received by a third party," nor that "Rehberg's voluntary delivery of emails to third parties constituted a voluntary relinquishment of the right to privacy in that information." The signatories of the brief were worried that these holdings would undermine the privacy enjoyed by millions online, and they applauded the Court's decision to reverse them.

The brief was signed by Professor Ohm, Professor Deirdre K. Mulligan, UC Berkeley School of Information; Professor Susan Freiwald, University of San Francisco School of Law; Professor Daniel J. Solove, George Washington University Law School; and Professor Joel Reidenberg, Fordham University School of Law, along with other scholars. 

Technology Law and Policy Clinic students Nicole Freiss and Devin Looijen each spent dozens of hours helping to file the brief, and Professor Brad Bernthal helped advise the project.