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.
A fifth factor is relevant in the Fourth Amendment context: whether the government gave an individual notice and the individual had knowledge of the right to refuse to give consent to the future search of their emails. Courts held individuals who agreed, as a condition of employment to “any future searches” did not waive their right against such searches because the waiver failed to give them the “right to refuse to give consent to the future search.” For the government to claim implied consent or waiver, “requires clear notice that one’s conduct may result in a search being conducted of areas which the person has been warned are subject to search,” and such notice must ensure an individual “had knowledge of the right to refuse to give consent.” (Pure Power Boot Camp v. Warrior Fitness Boot Camp, 587 F.Supp.2d 548 (S.D.N.Y. 2008). Hence, a broad waiver was found inadequate to permit a search. (Anobile v. Pellegrino, 303 F.3d 107, 124-25 (2d. Cir. 2002). The Supreme Court made it clear the question usually “must be addressed on a case-by-case basis” and rarely subject to blanket waivers of Fourth Amendment liberties. (City of Ontario, Cal. V. Quon, 560 U.S. 746 (2010).) As the court reiterated, “individuals do not lose Fourth Amendment rights” merely because they use government-provided servers, offices, or equipment. (O’Connor v. Ortega, 480 U.S. 709 (1987).
Courts held that an employee has a reasonably expectation of privacy in the contents of his computer even when given specific notice the computers could not be used for personal purposes and the individual had authorized disclosure for technical and maintenance audits. Leventhal v. Knapek, 266 F.3d 64, 74 (2d. Cir. 2001). Attorney-client privilege is broader. As courts have held, emails between government employees remained privileged even though sent over government email servers. (In re County of Erie, 473 F.3d 413 (2d Cir. 2007). Courts held an ex-employee could assert attorney-client privilege against use of such emails by his company even though emails were located on employer’s computer and employer gave employee notice any documents stored on computer not protected. (Curto v. Medical World Communications (E.D. N.Y. 2006).
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The other side is they were using a government server and government devices, those emails belong to the taxpayers, where does executive privilege fall in, only after he is sworn in?
But now if everyone involved does not have perfect memory of what was emailed they will “Flynn” the transition team. Get the old Martha Stewart treatment. Now they need to all stop being cooperative with the investigators that wont look good will it?
Last ditch effort to impeach.
The warrant was way too broad in scope no real definition. So again the fools allowed them to define terms.
The left always asks forgiveness instead of permission, even in cases of personal privacy. Apparently Mueller is desperate, the dripping bias of his team fully exposed and the stench of leftist persecution wafting all over. He’ll glean what he can manipulate into leverage or the appearance of guilt, then apologize for violating everyone’s rights.
Nothing Mueller did is unlawful. If something truly was illegal, the argument would be made before a judge rather than on political talk shows and the internet.
The entire point of the claim is to plant an idea that might later become a serviceable justification for stopping Mueller’s investigation. Timing, of course, would be everything. There would have to be a major distraction in the news in order to get away with it. The signing of the tax reform bill would almost certainly fall short. Maybe Kim Jong-un will provide the needed cover.
AH, HA, HA, HA, HA, HA, HA, HA… gasp.
That’s a good one, Greg. It’s almost as if you believe the leftist media cares about Constitutional rights and justice.
If Mueller truly broke the law, take the evidence before a judge. You know, like you did in the case of Hillary Clinton’s many, many serious crimes.
The light at the end of the tunnel is an oncoming express train. It’s reality, in the form of the Mueller investigation.
I’ve never heard gigantic liberal embarrassment described as an “express train”, but you could be accurate.
Gosh, two and a half years to prove something that, as your article elsewhere said, is hiding in plain sight. Gee, right up to the next election. A coincidence, taking so long to prove something so obvious and apparent that every crybaby, sore loser liberal KNOWS it to be true, I’m sure there is no political component or motive involved.
Let’s re-write that, as Greg has offered the best phrasing for this non-issue:
“Nothing [Trump] did is unlawful. If something truly was illegal, the argument would be made before a judge rather than on political talk shows and the internet.”
Trump won. Your Party colluded within to get Hillary the nomination (No one wanted her), and your Party colluded with Russia to win the election. It backfired, so your Party is using the pieces to generate false stories about Trump.
It’s not working, of course…no one in the electorate thinks Trump colluded with anyone.