Home » Blog » Criminal Defense » Emails can become one’s criminal undoing, and can metamorphosize from privleged to not

Emails can become one’s criminal undoing, and can metamorphosize from privleged to not

Call Us: 703-383-1100

Underlining that Abscam was far from the last time that legislators set themselves up for bribery convictions, yesterday the Fourth Circuit affirmed the bribery and extortion conviction of Phillip Hamilton for using his then-existing position as a high-level Virginia state legislator to obtain a well-paying public college teaching position in exchange for his promise to steer one million dollars towards that college. U.S. v. Hamilton, ___ F.2d ___ (Dec. 13, 2012).

Hamilton’s downfall came from his emails on the topic to his wife. Hamilton unsuccessfully argued at the trial and appellate levels that those emails, sent from his work email address, were protected by the marital privilege. The Fourth Circuit said that the applicable emails to his wife, sent in 2006, became unprivileged once his employer announced three years later that no emails from their email system were confidential.

The Fourth Circuit pointed out, as follows, the arguments of Hamilton and EPIC on the privilege matter, which arguments the Fourth Circuit rejected:

Hamilton contends that he did not waive the privilege because he "had no reason to believe, at the time he sent and received the emails, that they were not privileged," and he could not waive his privilege retroactively. Amicus, the Electronic Privacy Information Center, adds that it seems "extreme" to "require an employee to scan all archived e-mails and remove any that are personal and confidential every time the workplace use policy changes," when "employees may not even be aware that archived e-mails exist or know where to find them." EPIC Br. at 18.

People may feel a false cocoon of privacy when surfing the Internet and sending and receiving email. Underline the word "false".