Several weeks ago, the 11th Circuit Court of Appeals held that Democrat Ken Hodges, candidate for Attorney General (Website | Facebook | LinkedIn | Twitter) could not be held liable for allegedly outrageous and mystifying actions he took in his official capacity as the then-District Attorney of Dougherty County in a matter of whistle blowers who were indicted three times by Hodges’ office for sending anonymous facsimile transmissions concerning the billing practices of Phoebe Putney Memorial Hospital in Albany.
This afternoon, a Petition for Rehearing En Banc was filed by whistle blower Charles Rehberg and others asking for a rehearing concerning the original 11th Circuit ruling. You can download the filing HERE.
Joining Rehberg in this Petition now is the Electronic Frontier Foundation, in part because of a finding by the 11th Circuit, in keeping Ken Hodges’ actions protected from scrutiny, that e-mail content is not protected under the Constitution’s Fourth Amendment right to privacy in personal communications. EFF is the premier advocacy group that fights for consumer rights in modern electronic media.
The stunning result of the original ruling holding Hodges could not be sued for his actions against Rehberg means, in no small measure, that conceivably any government official could obtain any citizens private e-mail (both sent and received), without first obtaining a warrant…just like it is alleged Ken Hodges did with a private citizen.
Indeed, an analysis from the American Bar Association, as well as from myriad other attorneys, supports the interpretation that the 11th Circuit, in their original ruling, permits prosecutors like Ken Hodges to legally obtain any e-mail sent from any private citizen the moment the ‘send’ button is hit. In short, this is a serious issue for privacy advocates and raises questions as to just how far Georgia’s District Attorney’s can go in obtaining information about private citizens without a legal and proper warrant.
If Rehberg’s Petition is accepted for rehearing, the recent opinion is automatically vacated. If it is not accepted, it appears more likely than not there will be an application for Certiorari to the U.S. Supreme Court. Ultimately, regardless the outcome, the question remains if Ken Hodges has the legal temperament to be the top law enforcement officer for Georgia.
[UPDATE] A press release from the Electronic Frontier Foundation can be found after the jump.
The Electronic Frontier Foundation (EFF) and attorney Bryan Vroon asked the U.S. Court of Appeals for the 11th Circuit today to reexamine a panel ruling that violated a whistleblower’s Fourth Amendment right to privacy in his email communications.
The whistleblower, Charles Rehberg, uncovered systematic mismanagement of funds at a Georgia public hospital. He alerted local politicians and others to the issue through a series of faxes. A local prosecutor in Dougherty County, Ken Hodges, conspired with the hospital and used a sham grand jury subpoena to obtain Mr. Rehberg’s personal email communications. The prosecutor then provided that information to private investigators for the hospital and indicted Mr. Rehberg for a burglary and assault that never actually occurred. All the criminal charges against Mr. Rehberg were eventually dismissed. Hodges is currently running for Attorney General of Georgia in the Democratic primary.
Mr. Rehberg filed a civil suit against the prosecutors and their investigator for their misconduct, but the appeals court erroneously ruled that he did not have a reasonable expectation of privacy in his private email.
“Mr. Rehberg did the right thing and blew the whistle on financial mismanagement,” said EFF Civil Liberties Director Jennifer Granick. “In response, he was persecuted by local authorities and his constitutional rights were violated. It’s well established that individuals have a right to privacy in the content of their communications, electronic or otherwise. We’re asking the court to look at this again and follow the law.”
Also at issue in EFF’s request for rehearing is the panel’s decision to give immunity to county prosecutors and their investigators for manipulating and fabricating “evidence” and defaming Mr. Rehberg as a felon in comments to the press.
“The Supreme Court has ruled that prosecutors are not entitled to immunity when they fabricate evidence during the course of an investigation, knowingly defame an innocent man as a felon to the press, or collude with private parties to retaliate against a critic, as they did here,” said Mr. Vroon, who has represented Mr. Rehberg since the beginning of his lawsuit. “This case involves a gross misuse of power which damaged an innocent man who never committed a burglary or assault on anyone.”