March 19, 2018

This is a chance to turn a past victory into a new victory

The State pretends email isn’t like a letter, but our Jones precedent can fix that Retweet

Do you own your emails? Can your email provider waive your Fourth Amendment rights, thereby permitting the government to seize and search your emails without a warrant?

This is the issue in U.S. v. Ackerman. We believe you own your emails, and we want to defend your property rights. But if we’re not involved in this case these property rights questions may not be asked. That would be a tragedy because… 

A judge with the Tenth Circuit Court of Appeals argued that the Jones precedent should’ve been applied, and the Tenth Circuit ordered the lower level federal trial court to reconsider its ruling on that basis. If the federal court had applied the new Jones standard, then the seizure and opening of Ackerman’s email would likely have been ruled “a search.” Searches require a warrant, so the evidence garnered from those emails would’ve been the result of a trespass.

The appeals judge who wanted to apply the Jones precedent is now Justice Gorsuch, sitting on the Supreme Court. That means he’s no longer available on the Appeals Court to push for the Jones precedent to impact the ruling. We must do that by filing a brief!

Remember the (Antoine) Jones case (U.S. v. Jones)? We submitted a unique brief with a winning argument. In that case…

We alone argued that the Fourth Amendment protects property rights. From 1968 until Jones (2012) the courts had operated on a “reasonable expectation of privacy” rationale. During that time…

The realm of “expected privacy” shrank dramatically because of new technologies. Cops no longer had to raid property or stalk suspects. They could listen through walls and monitor movements. We needed the property understanding restored. And…

Even though we won a landmark decision in Jones, our work isn’t done.

See, if emails are NOT your property, then any service that handles your messages can open and read them without a warrant!

Walter Ackerman emailed offensive contraband. Long story short, it was opened without a warrant.

Email is a modern invention. But the issues at stake are ancient. You get stuff delivered to you. The “owner to be” is spelled out on the label. The delivery company is called a “bailee” in a process lawyers call bailment.

A bailment is where property is placed in the safekeeping of someone who doesn’t actually own the contents. It covers things like safe deposit boxes, storage facilities, animals boarded in kennels, and, of course, mail.

We want to submit a brief that will make the unique argument that your email is in a state of bailment — like a letter sent via the Postal Service. It cannot be opened without a warrant based on probable cause.

We believe this case might even have implications for Ross Ulbricht (Silk Road). Ulbricht’s Fourth Amendment rights were violated in extreme ways. Federal agents opened and read his emails without a warrant. The agents justified this on the pretense that internet routing data is like a published telephone number, so that the emails, while in the transfer, were not bailments. It’s a small step, from there, to getting “inside the envelope.”

Will you see to it that the Tenth Circuit, absent Judge Gorsuch, doesn’t overlook the Jones/property argument? Will you help us file an amicus brief in this case?

This won’t be easy. Here’s why…

We used to be able to count on other groups in a coalition to provide lead funding on these briefs. They’d chip in $4,000 or more. We’d donate at a lower level. But…

For this brief to happen, we must be the leader.

That means we must have…

  1. Somewhere around 50 or 60 people making generous contributions,
  2. Ten new monthly pledgers, who will also make future briefs possible, and…
  3. At least one patron at the $1,000 to $2,000 level.

Now is a great time to be that patron. Brad, a South Carolina donor, has issued a challenge: Brad will give $500, if we can present him with evidence that another donor has matched or exceeded his contribution.

Please choose which level is right for you, because we’ll lose this opportunity without you.

DownsizeDC.org is partnering with the Downsize DC Foundation, home of the Zero Aggression Project. When you click this link, you’ll be taken to the ZAP contribution form. That way your contribution can be tax-deductible if you itemize.

Thank you, in advance, for your support,

Jim Babka & Perry Willis
Downsize DC Foundation
& DownsizeDC.org, Inc.

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One Comment


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    JdL
    Posted March 20, 2018 at 7:08 am | Permalink

    Having a court decision in our favor is well and good, but let’s get real: the government can’t be trusted to abide by the law. Let’s put the responsibility where it belongs, on ourselves, and encrypt our private communications rather than praying that the courts will protect us.

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