The Rehberg v. Paulk court decision is a few months old now, but I think it’s an important one for people to be aware of.  I claim no support for the defendant on the overall merits of the case, but I have serious concerns about the ramifications of several elements of the decision.  Specifically, these:

Here, Rehberg lacks a reasonable expectation of privacy in the phone and fax numbers he dialed. Once he voluntarily provided that information to BellSouth and Alltel (later Sprint), Rehberg lacked any further valid expectation that those third parties would not turn the information over to law enforcement officers. Absent a valid right of privacy, Rehberg cannot state a constitutional violation regarding the subpoenas for his phone and fax information.

Rehberg’s voluntary delivery of emails to third parties constituted a voluntary relinquishment of the right to privacy in that information. Rehberg does not allege Hodges and Paulk illegally searched his home computer for emails, but alleges Hodges and Paulk subpoenaed the emails directly from the third-party Internet service provider to which Rehberg transmitted the messages. Lacking a valid expectation of privacy in that email information, Rehberg fails to state a Fourth Amendment violation for the subpoenas for his Internet records.

What they are claiming is that we, as citizens, do not have a “reasonable expectation of privacy” when doing business with our service providers.  Or, in other words, we cannot, or should not, expect that when we make telephone calls or send emails – which the vast majority of us have no means of doing without accessing some sort of service provider – that who we call, who we email, or the content of those emails will remain between us, the people we contacted, and the companies providing the service.

Now, please note that the issue here is not whether law enforcement agents could, in some manner, access the information.  The issue is that they did not require a warrant. To my mind, this is a clear and obvious breach of Constitutional rights, because they would never have obtained the information directly from the defendant without a warrant.  But because of this fictional absence of “reasonable expectation of privacy,” they claim that there was no violation of Constitutional rights in obtaining this information without a warrant.

Well, I look at it this way: Would they let me access this guy’s telephone records or emails?  Of course not!  Why?  Because that’s his private information. Hmmm…sounds like a “reasonable expectation of privacy” to me.  If the information is such that we would not expect that “Joe Schmoe” off the street should be able to access it, then common sense would dictate that the average citizen has a “reasonable expectation of [the] privacy” of that information.

So what can we do?  Spread the word.  Let the government know that we know about this decision, and that we think their idea of a “reasonable expectation of privacy” in this matter is completely bogus and self-serving.  Let the telephone and internet companies know that we absolutely expect that our information will remain private (unless an appropriate warrant is issued which, hopefully, would not be an issue for any of my readers!).  In short, communicate that the court is out of touch with the will of the people and with the clear sense of the Constitution’s wording.  Anything but roll over and play dead!  We have to stay vigilant!

(The quotes above were obtained from http://www.leagle.com/unsecure/page.htm?shortname=infco20100311081.  The case is Rehberg v. Paulk, and the decision was handed down by the United States Court of Appeals, Eleventh Circuit, on March 11, 2010.)