UNITED STATES V. MOHAMUD
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ii. Mohamud’s Privacy Interest
The parties agree that Mohamud had some expectation of
privacy in his electronic communications, but disagree as to
the strength of his interest. The government argues that U.S.
persons have a limited expectation of privacy when
communicating electronically with non-U.S. persons located
outside the United States because of the Fourth Amendment’s
“third-party” doctrine—that a person’s privacy interest is
diminished where he or she reveals information to a third
party, even in confidence. Mohamud contends that the
voluntary disclosure of information to third parties does not
reduce the expectation of privacy. The district court
determined that under the third-party doctrine, Mohamud had
a reduced expectation of privacy in his communications to
third parties. We agree.
With respect to a U.S. person’s privacy interest, we treat
emails as letters. See, e.g., [Redacted], 2011 WL 10945618,
at *26 (FISA Ct. Oct. 3, 2011) (“Whether they are transmitted
by letter, telephone or e-mail, a person’s private
communications are akin to personal papers.”); United States
v. Warshak, 631 F.3d 266, 285–86 (6th Cir. 2010) (“Given
the fundamental similarities between email and traditional
forms of communication, it would defy common sense to
afford emails lesser Fourth Amendment protection.”).
Accordingly, until electronic communications reach the
recipient, they retain the same level of privacy interest as if
they were still in the home. See, e.g., United States v. Van
Leeuwen, 397 U.S. 249, 251 (1970).
But as with letters, “[a] person’s reasonable expectation
of privacy may be diminished in ‘transmissions over the
Internet or e-mail that have already arrived at the recipient.’”
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