Work Emails and Reasonable Expectations of Privacy - Is the Divide Ripening for the Supreme Court
As indicated by my prior posts, You've Got Email, But Is It Private At Work? and Is Einstein Reading Your Email for the Government?, the questions and arguments about privacy and email are heating up. A recent case in point covered by the ABA Journal in Martha Neal's article, Prosecutor’s E-Mail Sent to His Lawyer on a Work Account is Privileged, Court Says, presents an interesting case. Here Neal reports,
A federal prosecutor's e-mail to his own lawyer is privileged, even though he sent it from work on a government computer, a federal court has ruled.
As pointed out in the article, this is in contrast to similar cases and interpretations. A comparison of this case and the government's arguments reviewed in, Is Einstein Reading Your Email for the Government? shows how the divide in these matters is growing.
Attorney-client privilege is a fiercely guarded area of privacy and this case may present the opportunity for the Supreme Court to reaffirm the attorney-client privilege in the the context of email and the information age. Of course, if taken up, how they go about this could have far wider implications for privacy rights and email communications. If heard, would they focus on the rule (reasonable expectation of privacy) or rather focus on the exceptions or privileges. If examined, will they look at the totality of the circumstances and thus leave the law to be advanced case-by-case as the circumstances come before courts or could they take a more holistic approach that offers guidance in this uncertain arena. Time will tell, but the issue seems to be ripening with each "send" button pressed.
