Brief filed: 04/13/2018
United States v. Ackerman
10th Circuit Court of Appeals; Case No. 17-3238
2017 WL 4890433 (D. Kan. Oct. 30, 2017), denied rehearing and rehearing en banc via 826 F.3d 214 (5th Cir. June 10, 2016)
The district court’s opinion undermines widely recognized Fourth Amendment protections for email. The expectation of privacy in email is reasonable and well established. The ability of a third party service provider to access emails does not defeat the user’s reasonable expectation of privacy. An email provider’s terms of service should not defeat a user’s reasonable expectation of privacy in email. The district court’s holding that AOLs TOS extinguished defendant’s reasonable expectation of privacy is inconsistent with established Fourth Amendment protections for email. Fourth Amendment protection should not depend on private agreements between email service providers and their users. Finding that contractual terms impact a user’s expectation of privacy against the government would lead to absurd results. A reasonable expectation of privacy does not end just because an account is terminated. Upholding the district court would reinstate the third-party doctrine for email and create a split of authority with the Sixth Circuit.
Jennifer Lynch and Andrew Crocker, EFF, San Francisco, CA; Barbara E. Bergman, NACDL, Tucson, AZ