Many of our most personal communications and financial records are accessible through our emails. Law enforcement officers, however, can obtain much of this information without a warrant. The government often uses legal processes that allow for searches of electronic records such as emails without any notification to the individuals whose information has been searched.
The Fourth Amendment provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” To determine whether the Fourth Amendment applies to a particular search, courts examine: 1) whether the person exhibited an actual (subjective) expectation of privacy; and 2) whether that expectation is one that society is prepared to recognize as reasonable. Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring).
A warrant, however, is not needed for emails over 180 days old that are stored by a service provider such as Gmail. Under a 1986 law called the Electronic Communications Privacy Act, emails that are over 180 days old may be obtained from the service provider with only a subpoena, rather than a warrant. In contrast, email communications stored on a home computer or emails less than 180 days old may only be obtained with a warrant. Notably, the Sixth Circuit has held that the contents of an email are protected by the Fourth Amendment, even if the email is stored by an internet service provider.
Beyond the Sixth Circuit, there is an important distinction when it comes to privacy for old emails stored by a service provider because, unlike a warrant, a subpoena can be obtained with little judicial oversight. Under the Federal Rules of Criminal Procedure, the clerk of the court issues a blank subpoena to the party requesting it, and that party completes the subpoena and serves it. No judicial officer reviews the completed subpoena before it is served to determine whether the request for information is reasonable. Google reports that in 2015, it received 31,343 requests for information from the U.S. government, and the most common legal process used was a subpoena. Google further claims that the company will not provide the contents of Gmail and other services absent a warrant, based on the company’s belief that this is required by the Fourth Amendment.
Significantly, the government often does not notify individuals whose emails have been searched, regardless of whether the search was authorized by a warrant or by a subpoena. Under the Stored Communications Act, the government may delay such notification when it has reason to believe that such notification would result in: 1) endangering the life or physical safety of an individual; 2) flight from prosecution; 3) destruction of or tampering with evidence; 4) intimidating of potential witnesses; or 4) otherwise seriously jeopardizing an investigation or unduly delaying a trial. In such cases, the government may also apply for a court order prohibiting the electronic services provider from notifying any other person of the existence of the warrant, subpoena, or court order.
These processes have been challenged recently. On April 14, 2016, Microsoft filed a lawsuit in the Western District of Washington challenging the constitutionality the so-called “secrecy orders” that prevent Microsoft from disclosing the government’s demands to its customers whose records have been searched. According to the complaint, between September 2014 and March 2016, Microsoft received 5,624 federal government demands for customer information or data. Microsoft alleges that nearly half of these demands were accompanied by court orders prohibiting the company from disclosing the demand to the customer involved, and 1,752 of such orders contained no time limit on this prohibition.
Microsoft argues that these practices violate the First and Fourth Amendments. “Cloud computing has spurred another profound change in the storage of private information,” Microsoft stated. “But the transition to the cloud does not alter the fundamental constitutional protection that the government must – with few exceptions – give notice when it searches and seizes the private information or communications of individuals or businesses.”
Congress is taking a hard look at these practices as well. On April 27, 2016, the House of Representatives unanimously passed the Email Privacy Act, which would require law enforcement officers to obtain a warrant in order to obtain emails over 180 days old from a service provider. However, the bill’s consideration in the Senate is likely to be more contentious. For example, Senate Judiciary Chairman Charles Grassley, R-IA, has stated that his committee is concerned about law enforcement’s access to information.
The government’s current practice of secretly obtaining private emails by subpoena is at odds with the fundamental principles of the Fourth Amendment. Recent challenges to these procedures may help to adapt privacy rights to fit our digital world.