Bringing the Fourth Amendment into the 21st Century

The New York Times recently reported that the Senate Judiciary Committee has approved a bill “that would strengthen privacy protection for e-mails by requiring law enforcement officials to obtain a warrant from a judge in most cases before gaining access to messages in individual accounts stored electronically.”

According to The Times, U.S. Sen. Patrick Leahy, an architect of the 1986 Electronic Communications Privacy Act, is leading the effort to revise the statute, believing that emails stored by third parties should receive the same protection as papers stored in a filing cabinet in an individual’s house.

“Like many Americans, I am concerned about the growing and unwelcome intrusions into our private lives in cyberspace,” Leahy said in The Times piece. “I also understand that we must update our digital privacy laws to keep pace with the rapid advances in technology.”

Leahy’s bill, which is being opposed by the U.S. Department of Justice, would generally require prosecutors to obtain a search warrant from a judge, under the stricter probable-cause standard, to compel a communications provider to turn over all categories of emails and other private documents.

Notably absent from the present dialogue is the fact that this matter has already been decided, adversely to the DOJ, by the 6th U.S. Circuit Court of Appeals in United States v. Warshak, a matter we litigated.

In a decision issued in December 2010, the 6th Circuit ruled that the government violates a citizen’s Fourth Amendment rights when it seizes emails from a citizen’s Internet Service Provider without first securing a warrant, at least when the citizen exhibits a subjective expectation of privacy in those emails.

Characterizing the issue as “one of grave import and enduring consequence,” the court held, as a general matter, that a subscriber does indeed enjoy “a reasonable expectation of privacy in the contents of emails ‘that are stored with, or sent or received through, a commercial ISP.’”

Given that foundational ruling, the court held that the “government may not compel a commercial ISP to turn over the contents of a subscriber’s emails without first obtaining a warrant based on probable cause,” and the Stored Communications Act is therefore unconstitutional “to the extent [it] purports to permit the government to obtain such emails warrantlessly.”

The DOJ should not be permitted to ignore the consequence of Warshak, nor should the present discourse proceed without discussion of the 6th Circuit’s important opinion.

The DOJ fully participated in the Warshak appeal, dispatching prosecutors from their Computer Crime Section in Washington, D.C., to litigate the issue, and then deliberately chose not to seek Supreme Court review of the decision of the 6th Circuit, a court with a reputation for being decidedly conservative.

Leahy is profoundly correct in seeking to amend the statute so that the DOJ can no longer ignore the bedrock principles articulated by the 6th Circuit. Clearly, the “balance” struck by Congress in the nascent stages of our technology revolution, when email and the Internet were still relatively new and used by few people, is not automatically the “balance” that should be drawn when, as now, email has evolved into the principal method of communication chosen by Americans.

And, ultimately, it is not a question of balance at all, but what the Fourth Amendment requires in the context of the seizure and search of the content of private ISP-stored emails.

Like a sealed or resealed first-class letter, or a document stored in a closed filing cabinet, an email stored on an ISP’s server is a closed container in which an individual has a strong, reasonable expectation of privacy, as the Sixth Circuit concluded in Warshak.

Consequently, in accord with more than a century of Supreme Court jurisprudence, emails stored within an ISP server are entitled to all of the protections afforded by the Fourth Amendment’s imperatives of probable cause, particularization and a judicially authorized warrant.

While one would have hoped Warshak would have terminated the government’s past practice of circumventing the requirements of particularization, probable cause and a warrant through the use of secret subpoenas or court orders, its opposition to Leahy’s amendment and its recent, apparently warrantless, acquisition of General Petraeus’ confidential emails clearly indicate otherwise. Legislative action is therefore imperative.

The comments of 6th Circuit Judge Boyce Martin bear repeating here: “If I were to tell James Otis and John Adams that a citizen’s private correspondence is now potentially subject to ex parte and unannounced searches by the government without a warrant supported by probable cause, what would they say? Probably nothing, they would be left speechless.”

Martin G. Weinberg and Robert M. Goldstein are Boston criminal defense attorneys who successfully litigated the Fourth Amendment decision in United States v. Warshak