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2007

Fourth Amendment

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The Fourth Amendment Status Of Stored E-Mail: The Law Professors’ Brief In Warshak V. United States, Susan Freiwald, Patricia L. Bellia Dec 2006

The Fourth Amendment Status Of Stored E-Mail: The Law Professors’ Brief In Warshak V. United States, Susan Freiwald, Patricia L. Bellia

Susan Freiwald

This paper contains the law professors' brief in the landmark case of Warshak v. United States, the first federal appellate case to recognize a reasonable expectation of privacy in electronic mail stored with an Internet Service Provider (ISP). While the 6th circuit's opinion was subsequently vacated and reheard en banc, the panel decision will remain extremely significant for its requirement that law enforcement agents must generally acquire a warrant before compelling an ISP to disclose its subscriber's stored e-mails. The law professors' brief, co-authored by Susan Freiwald (University of San Francisco) and Patricia L. Bellia (Notre Dame) and signed by …

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A First Principles Approach To Communications' Privacy, Susan Freiwald Dec 2006

A First Principles Approach To Communications' Privacy, Susan Freiwald

Susan Freiwald

Under current doctrines, parties to a communication enjoy robust constitutional protection against government surveillance only when they have a reasonable expectation of privacy in those communications. This paper suggests that the surprising dearth of case law applying the reasonable expectations of privacy test to modern electronic communications reflects courts' discomfort with the test's necessarily normative analysis. That discomfort also likely explains courts' use of shortcuts based on Miller v. United States and Smith v. Maryland in those few cases that have considered online surveillance practices. In particular, the government has argued that a broad third party rule deprives electronic mail …

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