In response to questions I posed last week when digging into the debates around President Obama's smart phone, I received an e-mail from Justin Kelton, an associate at the law firm of Bickel & Brewer. Kelton, who is based in the firm's New York office, has an undergraduate degree in computer science and has researched and written on legal issues surrounding computer security.
He noted the President's use of a smart phone to communicate raises a significant legal issue that few have mentioned as yet: Does it invalidate any "presidential privilege" he might have had by virtue of his office? Kelton says:
If you know that a third party might see a communication that you send to your attorney, then that communication will not qualify for the attorney-client privilege. A similar privilege applies to presidential communications.
Basically, the argument goes, because messages sent via mobile devices must travel through so many different servers and routers, etc., to reach their destinations, there are many opportunities for the messages to be covertly intercepted along the way. Kelton says the argument can be made that the Presidential privilege automatically will not apply to communications transmitted via a smart phone because the President and his staffers are aware that those messages might be seen or heard by other parties. If that is the case, he says:
Obviously, if the President's communications were open to legal discovery (for example, through a lawsuit or a FOIA request), it would have an enormous impact.
Kelton admits the issue hasn't come up much in case law yet, but it may now that the President will continue to use his BlackBerry.