The 11th circuit court just decided that 4th amendment (the unlawful search & seizure amendment) effectively doesn’t apply to email. Outrage! Horror! How do I capitalize on this?!?

To see the opportunity you need some background on the arcane decision.

  • First, since the emails were delivered and the government was looking at copies from the ISP after delivery, the existing rules about not snooping into physical postal mail doesn’t apply.
  • Second, the email wasn’t in a physical envelope (which in today’s world should be read as they weren’t encrypted) so they can’t reasonably expect privacy.
  • Finally, since a third party was handed the email (e.g., the ISP and anyone else in the chain of Internet email servers) the information was already public and therefore not subject to search and seizure niceties.

Sure, everyone could start encrypting their emails. but since nobody will, my solution is: claim all email as “privileged communications”.

When the user sends out an email, they also CC my service and append a “privileged” message at the end. I would even provide a Thunderbird and Outlook plug-in that automatically adds my service to the CC and adds a sig that identifies the communication as privileged (and advertises my service).

The technical solution is almost trivially easy – upon getting a message, store them for a very short time, and delete them. It would need to keep some simple usage stats for billing, but no message contents. Add a minimalistic modern web site to explain the service and sign up users with a low annual fee, and you’ve got a business.

All we need now is to make the claim that the email is privileged communication. Privilege can exist between a lawyer and client, doctor and patient, clergy and penitent, and between spouses. Using a lawyer or doctor would put their professional credentials on the line given the tenuous nature of the “privilege” in the communication, and I don’t want my evil plans to get anyone disbarred or anything. So this leaves the clergy option; and you can apply online!

So, is this legally binding? Well, that is an interesting question…

The American Bar Association has issued an opinion that privileged communications in emails are enforceable.  Of course this is just an opinion, not a law. And the opinion came well before the 11th circuit ruling. And they are only talking about unequivocal legal advice privileged communication. Hummm…

The service needs to be up front about the legally status – it hasn’t been tested, and if it is ever tested, the site will roll over and play dead. The fine print states the user is responsible for ensuring all communications are applicable to”privileged communications” laws of their state.  Also it needs to be clear that this explicitly isn’t for protecting emails against lawsuits, but for helping people against unconstitutional government action.

Remember, the ultimate goal here is to make money off the Libertarians, hippies and Tea Party folks re-assert the 4th amendment, not to provide a strong legal claim of privilege.

This service is a roadblock, providing “best effort” piece of mind.  Any wide net subpoena that captures my user’s emails would by default exclude anything labeled as “Privileged Documents”. The subpoenaing government agency would need to need to convince the subpoena signing judge to ignore the privileged claim, something judges are loathe to do. It may represent a sufficient hurdle until the 11th’s decision can be overturned. Or it may not. In any case, given the current mood of the country, this would sell.