The U.S. District Court for the District of Columbia ruled last week that Assistant U.S. Attorney Jonathan Tukel had a reasonable expectation of privacy in his emails because federal prosecutors are allowed to use work email for personal matters, according to the news report. The court said Tukel’s messages to his private lawyer sent from work are covered by the attorney-client privilege and can remain confidential.
Commending the court’s decision, Tukel’s lawyer, James K. Robinson, a partner in the Washington office of Cadwalader, Wickersham & Taft, said: “Where someone who uses their company email, whether with the Justice Department or someone else, intends the communication to be confidential and takes reasonable steps to ensure the confidentiality … there is no waiver of the attorney-client privilege.” Robinson said the judge also recognized that in many instances, work email is the only email people have. “It’s one thing if the employer has a rigid rule that says you can never use your e-mail for anything personal, but most employers don’t,” he said, according to the news report.
The case involves former federal prosecutor Richard Convertino, who lost his job after his convictions in a high-profile terrorism trial in Detroit were overturned in 2004 due to prosecutorial misconduct. Convertino, who believes he was retaliated against for blowing the whistle on incompetence in the Bush administration’s war on terror, is trying to find out who leaked confidential information about an investigation into his conduct to the Detroit Free Press, and thinks Tukel’s emails to his lawyer may answer that question.
According to court documents, Tukel was the prosecutor in Detroit who reviewed Convertino’s cases, and he was “one of the original parties that initiated confidential personal matters” related to Convertino, the news report said. Tukel has denied in an affidavit that he’s the source of the leak, but Convertino still wants the emails and argued that Tukel has no privacy expectations in emails sent over a government computer.
The U.S. Supreme Court has agreed to consider the broader issue of whether workers have the expectation of privacy in communications sent via company accounts (see Supreme Court to Consider Workers’ Online Privacy).