My law review note was on the proper treatment of e-mail under the Fourth Amendment. My research disclosed a serious "should/is" dichotomy: That e-mail should, as a communication that is the functional equivalent of "papers," be treated as private, but that it is/would be given substantially less privacy. Then—as I predicted—the Illinois ethics rules were interpreted to mean that material in the body of an e-mail is so "nonprivate" that it may void attorney-client privilege, following the same (flawed) reasoning that I laid out in the "is" portion of my note without giving adequate weight to changing expectations of privacy under Katz. Thus, I've been advising clients of that during initial telephone consultations since then. Attorneys from other states have expressed a great deal of surprise.
No longer. Although the NYT is, as usual, about a week late on this—for whatever reason, the big media outlets just don't seem to be timely in covering major privacy issues that are not the subject of Supreme Court opinions—it has at least now acknowledged the issue. The problem is that both the courts and the statutes are getting wrapped up in the ease with which an interceptor can obtain communications as a proxy for the reasonableness of any expectation in the privacy of that communication. By that standard, though, no communication—even one on paper—can ever be considered private unless it uses strong encryption. Properly. So, instead, we are in the process of establishing highly formalistic bright-line tests that from the perspective of the interceptor; we are using the "cop perspective" on administrative convenience to judge the substantive rights of citizens. That this is inconsistent with Katz and Miranda, and even with the text and legislative history of Title III, is so obvious that I shouldn't have to point it out; but it appears that nobody did point it out to the First Circuit, or at least not adequately. Instead of looking at the rationale for Title III (which is a necessary underpinning for the ECPA and Stored Communications Acts), the Court (and the dissent) jumped right into the legislative history. Without ever citing Katz, or apparently considering it.