> Private electronic communications are "papers" in that context, a "gift" of a paper from one to another.

Except that would tend to imply that the 1s/0s of a digital communication can in some way represent a physical property of some sort which can warrant legal protection. Normally that viewpoint is completely abrogated by hacktivists since it leads inevitably to DRM and other IP-backed shenanigans.

On the contrary, the "paper" is duplicated and transmitted over third-party infrastructure, and normally to a third-party provider and then from there the "paper" still sitting in the user's computer RAM is finally forgotten by the software or saved to disk as a backup. But the copy sent to Google or FB or the ISP or whoever belongs completely to them, "gifted" or not. While the "intellectual property" and copyright will belong to the user, the "bits" belong to Google or FB or the ISP and so lose Fourth Amendment protection.

And it's better this way! The idea that one can exponentially and magically propagate property on hard disks around the world is almost laughably impossible. My point instead is that whatever protections are required for our electronic communications (either stored or in-flight) need to derive from positive statute law, not by people arguing the nuances of a Constitutional Amendment written while the "discoverer of electricity" still breathed! This is especially true since the interpretation of the Fourth Amendment which somehow corrals the government into getting the intended effect will necessarily require the invention of legal principles which will go against us in the future.

> But more importantly, the question you ask is phrased too narrowly in context. The First Amendment protects the right to communicate privately, free from government scrutiny. And the Fifth Amendment forbids the government from taking private property without due process and just compensation.

The First Amendment gives no such privacy right. Simply stated, your speech itself is protected, not your ability to privately communicate. There is a privacy right inherent in being able to associate (without the advocacy group being forced to make public its membership list), just like there's an privacy right in being able to petition anonymously. But there's no general right to privacy in the First Amendment and I'm surprised you'd make that error with a J.D. If anywhere there's a "right to privacy" against searches of this nature, it is in the Fourth Amendment (consider Katz v. United States, as modified by Smith v. Maryland).

But I'm even more worried by your reading of the Fifth Amendment. Your talk of "government taking private property" by copying 1/0s (not even on the wire necessarily, but even through things like PRISM) is EXACTLY what we've been fighting against with private companies.

A person may have signed an agreement with Google that gives Google the right to make copies of their email for delivery, but each ISP along that route signed no such thing. Are they all liable for transient IP theft then? Should a hacker copy that email unknowingly while cracking an ISP system, should they be charged for Copyright Act violations in addition to CFAA violations?

> Roll all three of those amendments together and you should begin to comprehend that Congress, in establishing criminal penalties for interception of the U.S. mail --- a topic you curiously omitted --- stood on very firm constitutional ground when it did so.

I mentioned it elsewhere, but that wasn't the topic anyways. But even there you've messed up the Constitutional principles. The reason Congress has power to regulate USPS has underpinnings entirely different from any of those 3 Amendments.

For starters, Congress has the power to regulate USPS by 2 specific clauses in Art. I, Section 8, detailing that Congress has the specific power to: "

- establish Post Offices and post Roads;, and
- To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers..."

In other words, Congress was specifically granted the power to setup the postal system of the U.S., subject to its other Constitutional constraints. So should Congress choose to further constraint the government as regards the postal service that is always their right. Congress must be at least as restrictive on the Government as the Bill of Rights demands, but they can choose to be more restrictive on their own.

But additionally, even if we weren't talking about the USPS, Congress has the right to regulate the Government in any fashion it wishes (again assuming it stays within the boundaries laid out by the Constitution) because of this clause from the same section:

"... To make Rules for the Government and Regulation of the land and naval Forces".

In fact it's only because of this positive direction from the Constitution that Congress is able to regulate, as the Tenth Amendment quite clearly states that any powers not specifically enumerated as belonging to the federal government are reserved to the states, and to the people.

> Your notion that U.S. mail is protected only by federal statute simply blinks past the fact that our federal government is a government of only limited powers, allowed only to do what is permitted by the Constitution, with all other powers and rights reserved to the States and the People; i.e., a "mail" law can not lawfully exist without Constitutional authorization for Congress to enact such a law.

Holy shit, now we agree again, will wonders never cease. But now you're inconsistent with yourself, which I'll leave you to correct however you choose.

> Also missing from your U.S. mail analogy is any analysis of a basis for believing that eMail should have any less protection than the U.S. mail. It is a criminal act for a government official on their own decision to open a letter to read the contents except in narrow common sense situations, such as a letter that is missing or has an invalid address. Why should eMail have any less protection?

I never once claimed that email should have no protection. All I've ever claimed is that it's not magically inherent in the Fourth Amendment, which speaks (on the whole) to private property and "a man's home is his castle", but not to what happens once you tell a third-party (especially a disinterested/neutral third-party) your little secret. If it were otherwise Congress would not have had to pass laws making it a crime for a government agent to open mail, engage in landline wiretaps, intercept electronic communications unless for foreign surveillance, etc. etc. etc.

> Paul E. Merrell, J.D.

Oh look, an AUTHORITY... should I link in all the opinions I find congruent to my viewpoint from a "real" J.D. or is it possible that your interpretation of the Constitution and the law is not binding simply because you and your J.D. say so?