The Fourth Amendment to the United States Constitution:
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.
The 4th Amendment privacy protection for your “papers and effects” could apply less narrowly than you think.
Federal District Court Judge Michael Mosman made a ruling way back on June 23 that is just now gaining notice, thanks to various perceptive bloggers. And it should be noticed. In his ruling, Judge Mosman declared that when the government obtains your e-mail and reads it, it doesn’t have to inform you that it’s done this. Why? Because the e-mail is being stored by a 3rd party, so it only has to tell the 3rd party — in this case, an internet service provider — that a search and seizure of your “papers and effects” has taken place.
The Fourth Amendment protects our homes from unreasonable searches and seizures, requiring that, absent special circumstances, the government obtain a search warrant based on probable cause before entering. See Kyllo v. United States, 533 U.S. 27, 31 (2001) (“At the very core of the Fourth Amendment stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion. With few exceptions, the question whether a warrantless search of a home is reasonable and hence constitutional must be answered no.” (internal quotation marks and citations omitted)). This is strong privacy protection for homes and the items within them in the physical world.
When a person uses the Internet, however, the user’s actions are no longer in his or her physical home; in fact he or she is not truly acting in private space at all. The user is generally accessing the Internet with a network account and computer storage owned by an ISP like Comcast or NetZero. All materials stored online, whether they are e-mails or remotely stored documents, are physically stored on servers owned by an ISP. When we send an e-mail or instant message from the comfort of our own homes to a friend across town the message travels from our computer to computers owned by a third party, the ISP, before being delivered to the intended recipient. Thus, “private” information is actually being held by third-party private companies.
This feature of the Internet has profound implications for how the Fourth Amendment protects Internet communications-if it protects them at all….
It is clear that notice is an essential part of the reasonableness calculus in judging searches and seizures under the Fourth Amendment. The Federal Public Defender has argued that this constitutional notice requirement supports Judge Hubel’s determination that the copy of the warrant and receipt (what the parties refer to as notice) must be provided to the subscriber to the e-mail account, rather than just to the ISP. The notice must be provided to the subscriber because the ISP “has a far lesser privacy interest in the content of its subscriber’s e-mails than the subscribers themselves.”
This argument fails to take into account the third party context in this case. If a suspect leaves private documents at his mother’s house and the police obtain a warrant to search his mother’s house, they need only provide a copy of the warrant and a receipt to the mother, even though she is not the “owner” of the documents. See Fed R.Crim.P 41(f)(1)(C) (stating that the officer executing the warrant “must give a copy of the warrant and a receipt … to the person from whom, or from whose premises, the property was taken”). In such a case, it is irrelevant that the suspect had a greater privacy interest in the content of the documents than did his mother. When he left the documents in her possession he no longer has a reasonable expectation of privacy in their contents….
Much of the reluctance to apply traditional notions of third party disclosure to the e-mail context seems to stem from a fundamental misunderstanding of the lack of privacy we all have in our e-mails. Some people seem to think that they are as private as letters, phone calls, or journal entries. The blunt fact is, they are not.
In this third party context, the Fourth Amendment notice requirement is satisfied when a valid warrant is obtained and served on the holder of the property to be seized, the ISP. In this case, the ISPs were served with the warrants to obtain the relevant e-mails. The requirements of the Fourth Amendment were satisfied.
Let’s review: if your “papers and effects” (in modern parlance, your communications and your belongings) are held by a third party, then according to Judge Mosman’s ruling when the government searches through them, it doesn’t have to notify you.
Gosh. If you receive e-mail that is stored on a server, and the government decides to search through it, then why should you be notified? After all, it’s not in your possession. It’s in the possession of your Internet Service Provider! Voila: your e-mail is now constitutionally unprotected and you’ll never know the search took place.
Golly. If you receive mail that is stored in a P.O. Box, and you haven’t picked it up yet, and the government decides to search through it, then why should you be notified? After all, it’s not in your possession. It’s in the possession of the U.S. Postal Service! Voila: your mail is now constitutionally unprotected and you’ll never know the search took place.
Gee whiz. If you keep documents in a safe deposit box at the bank, and the government decides to search through those documents, then why should you be notified? After all, they’re not in your possession. They’re in the possession of the bank! Voila: your safe deposit box is now constitutionally unprotected and you’ll never know your deeds and wills and other personal documents were riffled through.
Gerwhillikers! If Judge Mosman’s reasoning about the 4th Amendment holds, then the same would apply to items you’ve put in storage, because they’re not in your possession. They’re in the possession of the storage company! When you send a courier across town with a package, the government can search it and doesn’t have to tell you, either. After all, it’s not in your possession any more!
The practical bottom line of this: you really, unfortunately, can’t expect that the government isn’t getting its fingers into all sorts of your papers and effects, even if you haven’t gotten any notice that the searches have occurred. The government feels it doesn’t have to tell you about these searches when it gets a warrant (and we know it thinks it doesn’t have to tell you when it searches without a warrant) — and the judges are beginning to agree.