How to Exclude an Expert Who Says There is No Expectation of Online Privacy

A Plaintiff successfully excluded the Defendant’s testifying expert whose opinion was that “no one, including Plaintiffs, has a reasonable expectation of privacy in Internet communications.”  Clements-Jeffrey v. City of Springfield, 2011 U.S. Dist. LEXIS 81898, 2-3; 10 (S.D. Ohio July 27, 2011).

The case involved the theft of a laptop.  The “contextual expert” was going to offer the following opinions:

1. It is not reasonable to believe that electronic communication is private online.

2. Only the original owner of a computer can have meaningful knowledge of security protection it contains. Any subsequent user of a laptop cannot assume automatic protection of any kind.

3. Computer, laptop, and electronic equipment theft is a serious social and  criminological problem for organizations, businesses and individuals that requires reasonable remote and location-specific security solutions.

4. When a company activates system operation software capture for security reasons, the representatives of the company/employees cannot predict the nature of the material that will be accessed.

5. Security and theft protection tools are necessary and proper tools to combat computer theft.

Clements-Jeffrey, at *2-3.

The Court held the Defense Expert’s opinion was “absolutely irrelevant,” because the issue of whether the Plaintiffs had a reasonable expectation of privacy in their Internet communications was a question of law.  Clements-Jeffrey, at *6.

The Court further noted that the expert’s “opinion” was also contrary to case law.  Id.

The Court quickly recounted well-established precedent by multiple courts recognizing individuals having an objective reasonable expectation of privacy in their computers.  Clements-Jeffrey, at *7.

Moreover, case law has held that password-protected personal computers have an even greater privacy protection.  Id.

The Court further cited a Sixth Circuit case involving electronic communications holding that “a subscriber enjoys a reasonable expectation of privacy in the contents of emails ‘that are stored with, or sent or received through, a commercial [Internet service provider].'” Clements-Jeffrey, at *8, citing United States v. Warshak, 631 F.3d 266, 288 (6th Cir. 2010), reh’g and reh’g en banc denied (2011) (quoting Warshak v. United States, 490 F.3d 455, 473 (6th Cir. 2007)).

Furthermore, the Sixth Circuit held that that “the very fact that information is being passed through a communications network is a paramount Fourth Amendment consideration.” Clements-Jeffrey, at *8, citing Warshak, at *285.  As the Court further explained:

The court in Warshak also held that even though email had to pass through an Internet service provider (“ISP”), and even though that provider may have contractually reserved the right to access the subscriber’s email in certain circumstances, neither the ability of the ISP to gain that access, nor its contractual right to do so, extinguished the user’s reasonable expectation of privacy.

Clements-Jeffrey, at *8-9, Warshak, at 286-87.

The Court drove the issue home on the expert’s opinion with the following:

These holdings can logically be extended to cover instant messages and webcam communications, the types of electronic communications at issue in this case. Applicable statutes also shed light on whether an individual has an objectively reasonable expectation of privacy in electronic communications. The Stored Communications Act (“SCA”), 18 U.S.C. § 1701 et seq., at issue in Warshak and Quon and the subject of one of Plaintiffs’ claims in this case, specifically prohibits the intentional, unauthorized access of stored communications such as email. The Electronic Communications Privacy Act (“ECPA”), 18 U.S.C. § 2511, also the subject of one of Plaintiffs’ claims in this case, specifically prohibits the intentional, unauthorized interception, disclosure, and use of wire, oral, and electronic communications.

Clements-Jeffrey, at *9-10.

The Court held that the expert’s opinion was “contrary to law, and thus not relevant to the issues in this litigation.”  Clements-Jeffrey, at *10.

Bow Tie Thoughts

To say that the expert’s opinion that “no one” has an objective reasonable expectation of privacy in Internet communication bothered the judge is an understatement.

Privacy is a key battleground in litigation today, because individuals live their lives connected to email, text messages, IM’s, social media and whatever network their data is being sent over.  Relevant information is rightly subject to discovery in litigation, but to say there are no privacy interests at issue is a grave mistake.

The fact data is sent over an ISP does not render the 4th Amendment dead-letter law. Congress will continue to debate these issues and Courts will continue to vindicate these rights in litigation.  These issues will continue to make case law for the foreseeable future.

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