I'm talking both. The ECPA was important in that Congress avoided decades of court cases by making explicit the protections afforded electronically stored media, though they did not extend those protections far enough (which today in practice weakens protections that may have been more clearly delineated by now had the ECPA not been enacted).

Constitutional protection superseding (among other things) the fairly arbitrary 180 day requirement for a warrant set by the ECPA was clearly recognized by the Sixth Circuit in the US v Warshak second (criminal) case, stating that "The government may not compel a commercial ISP to turn over the contents of a subscriber’s emails without first obtaining a warrant based on probable cause."[1]

In both US v Warshak cases, though, the Sixth Circuit emphasized the higher protection afforded content over transactional data just for being content by the the tests established by both Katz v US and Smith v Maryland. They laid out that even the supremely terrible precedent of Smith v Maryland (which is the proud parent of allowing the government to seize "metadata" without a warrant) did not allow the government to "bootstrap" limited access to full access, including the access needed for automated processing of email contents by the email provider:

"The government also insists that ISPs regularly screen users’ e-mails for viruses, spam, and child pornography. Even assuming that this is true, however, such a process does not waive an expectation of privacy in the content of e-mails sent through the ISP, for the same reasons that the terms of service are insufficient to waive privacy expectations. The government states that ISPs “are developing technology that will enable them to scan user images” for child pornography and viruses. The government’s statement that this process involves “technology,” rather than manual, human review, suggests that it involves a computer searching for particular terms, types of images, or similar indicia of wrongdoing that would not disclose the content of the e-mail to any person at the ISP or elsewhere, aside from the recipient. But the reasonable expectation of privacy of an e-mail user goes to the content of the e-mail message. The fact that a computer scans millions of e-mails for signs of pornography or a virus does not invade an individual’s content-based privacy interest in the e-mails and has little bearing on his expectation of privacy in the content. In fact, these screening processes are analogous to the post office screening packages for evidence of drugs or explosives, which does not expose the content of written documents enclosed in the packages. The fact that such screening occurs as a general matter does not diminish the well-established reasonable expectation of privacy that users of the mail maintain in the packages they send."[2]

I have not personally seen a good argument for differentiating between spam filtering and contextual advertising in terms of access. Regardless, this is a clear argument for automated access being immaterial to the question of an expectation of privacy of the contents of an email.

[1] http://www.ca6.uscourts.gov/opinions.pdf/10a0377p-06.pdf

[2] http://www.ca6.uscourts.gov/opinions.pdf/07a0225p-06.pdf

Are you seriously proposing free e-mail and/or a spam filter is a good trade for one of the major pillar Bill of Rights? So goes my spam filter, so goes the constitution? What's ironic is that the spam guys use 1st amendment to justify the spam (same as junk mail and the credit rating agencies).

What? Where are on earth are you getting that from what I'm writing?

I'm saying that the Sixth Circuit has ruled that just because you use an email provider that scans your email contents for things like spam (or ads), you have not given up your 4th amendment right for that content to be secure against searches without a warrant.

What you quote is me arguing that your premise that contextual advertising is somehow distinct compared to scanning for spam both in function and legal implication is flawed. The next statement states that even if such a distinction could be made, the above quote from US v Warshak I is a perfect explanation of why agreeing to automated scanning of your email does not imply consent to an abrogation of your rights.

I really don't see how I can be clearer than "The government also insists that ISPs regularly screen users’ e-mails for viruses, spam, and child pornography. Even assuming that this is true, however, such a process does not waive an expectation of privacy in the content of e-mails sent through the ISP...."

Its flawed because that premise is at once irrelevant and falsely asserted. Neither a spam filter nor contextual advertising are inherent to private communication.

What is relevant to private communication is that it is private. If I CC larry page on a "private and confidential" e-mail to my lawyer, Mr page is a party to the conversation. It is no longer "private" nor "confidential". If every e-mails sent to a g-mail account is by default cc'd to Mr page, none of those communications are "confidential". By (statute) law, the senders are forfeiting attorney client privledge...by "opening" the communication to a thrid party. Its google's stated position that person sending an e-mail to a g-mail account has a no "reasonable expectation of privacy". And this is what that means. This means that google (wants to) treat your mail like Mr page is reading it, and it believes that users are in fact waiving their expectation of privacy by using or communicating with g-mail recipients. That includes presumably senders of mail who have not agreed to g-mails T&Cs (ie, who presumably do not have reason to know what they entail).

It is the insertion of an active third party into the communication which is a problem. Its a problem because it damages the inherent idea of 'mail' as a sender-recipient private relation (post office =/= an active recipient). And from here, the problems start.

In any event, I think you are missing the legal abstraction at the core of the analysis. Its not a problem you can wish away, nor is it one you can trust current statutes of case law to protect into the future. That is the nature of 'reasonable' modifiers; they are ultimately contextual. And here, we have self-interested parties strategically eroding the context of the 4th amendment, to the detriment of the the public at large.

> What is relevant to private communication is that it is private

This is not the basis for 4th amendment protections. You are also confusing things: attorney-client privilege comes to us from Common Law, not the 4th amendment and is not a good basis for discussing what is private, as there are many more restrictions on it (a warrant can almost never compel your attorney to testify against you, for instance, which is not the case for almost all normal communications).

The mere existence of a third party does not negate the reasonable expectation of privacy, otherwise no third party communication system would be safe from warrantless searches. What has long mattered is the reasonable expectation of privacy, which under current case law does not always but in many situations does override any details like the extent that a third party is involved in that communication (for instance, cc-ing Larry Page on an email does not make a message suddenly have no expectation of privacy any more than sending it to anyone else, as the limited list of recipients makes it on its face not for publication or public posting).

> It is the insertion of an active third party into the communication which is a problem. Its a problem because it damages the inherent idea of 'mail' as a sender-recipient private relation (post office =/= an active recipient). And from here, the problems start.

Again, this is wrong. The fact that there are people at the post office, people that could open your mail, people that do actively examine your mail for things like drugs or bombs does not negate your 4th amendment protections. Are you reading anything I'm writing? That's directly addressed in the quote three posts above this one.

> In any event, I think you are missing the legal abstraction at the core of the analysis.

This is just silly. What you are suggesting is that the third party doctrine has overruled all, and that merely using an email provider that scans for spam or looks for abuse has left you open for warrantless searches (which is almost all of them except ones your run yourself since open mail relays are virtually extinct). Not only have you provided no evidence for this belief, the ECPA says you are wrong for emails newer than 180 days, and it looks increasingly unlikely that the courts will agree with you for emails that are older.

You appear to be confusing Google saying that people sending email to users of gmail expect their emails to be handled by the machines that run gmail (or they should, because that's the only way it can physically work) with an argument about the 4th amendment. Breathe easy. That is not the case. Whether or not Google is breaching the plaintiff's expectation of privacy (and it would, again, be bad news for every email provider out there if they are found to), scanning your email is not publicly posting your email, and this tort case has no bearing on your 4th amendment protections from searches by the government. This was established in Katz v US 46 years ago, and remains true today.