Mr. Cohen;

So, if you post what someone said to you in a private conversation, that means none of your private conversations have constitutional protection from searches?

Great example of someone at the Paper of Record thinking that because they work there, they own the keys to the kingdom of jornalistic ethics. Johnson combines egotism with a stunning lack of common sense in thinking that his e-mail, sent to someone who is a potential subject of an unflattering Times story, is manditorially to be kept quiet by that person in order to protect the exclusivity of the Times' unflattering story. You don't get much more clueless than that.

Yes, I'm saying that there should not be any "privacy" protections for communications. I think that, "if forced to choose between my country and my friend, I hope I choose my friend" is vile, even if I'm the friend.

Note that I'm not saying that the communicative nature of a search's object negates protections for persons, houses, papers or effects, so the FBI can't just come storming into my house and grab my computer without a warrant -- but if it can get its hands on my emails without entering areas protected by the constitution, then it gets to do so.

AOG: note also that the pompous twit sent the e-mail to Ms. Seipp with no agreement beforehand that it was to be considered private, and that he still hasn't stopped digging. If they'd arranged to have an off-the-record conversation then he might garner some sympathy, but as it stands he got only what he deserved.

And if that don't beat all, the original complaint from the NYT folks is that Cathy wrote about her personal experience in her own column, instead of letting the NYT tell her story for her.

It is funny. I am on this law librarians listserv which probably has 1500 law librarians as subscribers. Lots of law firm librarians post requests for documents and other things asking for help; however, they have signatures that include the boilerplate information claiming that this is a confidential communication, blah, blah, blah. Confidential, yet they are posting it to an international listserv that is archived.

Sooner or later, some lawfirm is going to get in big trouble over client confidentiality and the internet. Having that boilerplate as a sig for every bit of outgoing email is just going to be part of the case against them. It's just like the privacy "requirement" sent to Seipp and is basically saying, "If I've screwed up, it's your responsibility to fix it."

As for privacy rights for email, another way of looking at it is to think about what email actually is. It is a computer file copied from computer to computer in a chain until it reaches its destination -- leaving a copy on each node along the way. I just tracert'd BrothersJudd.com and got 20 hops, so let's assume that if I send OJ an email, copies get left on as many as 20 computers along the way, owned by who nobody knows. What possible privacy claim can I make?

This is one of the reasons that "Raoul Ortega" came into being . Way back in the early Usenet days (like when Reagan was prez) I tried to participate in some discussions, only to get these nasty emails from people who would say one thing in public, and another in private. And I was expected to cover for their duplicity. By using a pseudonym, and later on, a pseudo-email address, I figured I would force people to be nasty in public, or spare me entirely. On the other hand, I had to decide that I wouldn't do anything I wouldn't do with my name attached, and I wouldn't contact anyone privately, either. Works for me.

But it's still amazing how people can still allow their "inner bigot" out in emails. I had just such an incident a few weeks ago. Those stories you hear about Bush Derangement Syndrome among academics are true.

joe;

Oh, I have no problem with Seipp. If you send someone an e-mail, you've just shared ownership of the content with them. It's Mr. Cohen's view that this means you are also sharing ownership with the government of that and all other e-mails that I find rather broad.

Mr. Cohen;

Here's the question then -- if I sent e-mail to Seipp using encryption, would she (in your view of e-mail) be required to provide the key to the federal government, absent a specific warrant? If I sent her two e-mails and she posted one (descrypted) on her weblog, would the government have a right to the crypto key for the other?

The question is perplexing. I believe that every American is obliged to report to the government any serious threat to the nation's security, encrypted or not.

I believe that, when engaging in searches, the government should follow the 4th Amendment. If it believes that it has probable cause to search a citizen's person, house, papers or effects it should in most instances get a warrant. If it doesn't, then the question (which is either over the admissibility of evidence or a Section 1983 suit for damages) is whether failing to get the warrant is excusable, which is an issue of, among other things, the extent to which the search is invasive and the urgency of the government's need.

To put it a different way, I think that the government can constitutionally park on the street outside your house and follow you around all day, noting where you go and, if they can do so from a place that they have a right to be, who you speak with. That doesn't mean that they can bug your house to hear what you say when your wife asks how your day went.

Aside from common courtesy, is there any reason that someone can't forward an email you sent them to whomsoever they wish -- or snail mail for that matter?

No, no reason at all.

Well, one reason is that techinically, every letter written is born with a copyright attached, and distribution without the author's permission is a violation of that copyright. But that has nothing at all to do with privacy of the communication. Even if you want to argue that ransom notes can't be shared with the police because they are private communications and copyrighted.

I was hoping that no one was going to raise that. It is an incredibly complex area. But, as Ortegas rush in where Cohen's fear to tread, two comments. First, emails would be no different from letters where the copyright is concerned. Second, if you are forwarding the physical letter there isn't any problem just as there is no problem about lending a book or selling it as used. Forwarding an email involves making a new copy and could be a technical copyright violation -- or maybe not. In any event, it wouldn't effect the 4th Amendment/privacy right analysis.