by Robert Barnes
According to published reports, Special Counsel Robert Mueller engaged in a mass seizure of all emails of the Trump transition team without even a warrant or a subpoena. In my opinion, a mass seizure – as is alleged here against Mueller – cannot conform to either Fourth Amendment standards or attorney-client privilege protections.
The questions boils down to this: was there a reason for the individuals communicating by email, including with their lawyers, to believe their communications were private or privileged? Or, did the individuals forever waive or “implicitly consent” to any future search or seizure of their emails?
The Supreme Court in 2010 “counsels caution” before too soon defining “the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication devices” until popular use of the technology used was better developed socially. (City of Ontario, Cal. V. Quon, 560 U.S. 746 (2010). In other words, do most people expect privacy in that use of technology to communicate, or do they assume it is equivalent to talking in an open office where anyone from the public can walk by? The court made clear a government search was not reasonable if not “justified at its inception” or “excessively intrusive” or “not reasonably related to the objectives of the search.”
Put simply, the use of a government server, like the use of an employer’s server, does not control the privilege or privacy analysis. Instead, courts typically employ a four-factor test, that tends to be very fact-intensive, email-specific, and individual-specific. (In re Reserve Fund Securities and Derivative Litigation, 275 F.R.D. 154 (S.D.N.Y. 2011). First, whether the government or company maintains a policy banning personal use. Second, whether the government or employer monitors the use of the email. Third, whether third parties have a right of access to the emails beyond technical audits and maintenance. Fourth, whether the government or employer notifies the individual of the limits on privacy in the emails, whether the individual was aware of those policies, the use of those policies, and the monitoring of those policies. It boils down to whether a person in the individual’s shoes would have had no reasonable expectation of privacy in their email communications.
SOURCE: Law & Crime