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.