The Fourth Amendment in a Brave New World

June 1, 2011

The past 12 months have seen an unprecedented shift in the law as it pertains to electronic communications. What makes this recent evolution particularly dramatic are the scope of the shift, the fact that the shift has affected multiple levels of e-communications and that each level of the evolution has headed in the same direction—toward increasing the restrictions that prevent law enforcement from gaining evidence from e-communications.

The irony is that at the very start of this 12 month period, the U.S. Supreme Court appeared to be warning the entire legal system against precisely this course of conduct in City of Ontario v. Quon,1 when it stated:

The Court must proceed with care when considering the whole concept of privacy expectations in communications made on electronic equipment. …Rapid changes in the dynamics of communication and information transmission are evident not just in the technology itself but in what society accepts as proper behavior.
A brief overview of the legal landscape prior to the recent shift is necessary in order to fully appreciate the impact of recent case law. Moreover, it helps to understand the historical underpinnings of modern e-communication law by beginning at the birth of the law regarding telephonic communication.

Two 1967 U.S. Supreme Court decisions are generally considered to be the motivating force behind today’s wiretap statutes.

Katz v. United States, 389 U.S. 347, ruled that Fourth Amendment protections against law enforcement warrantless seizures applied to people and not just places, so as to extend privacy rights to include telephonic communications. Coupled with Berger v. New York, 388 U.S. 41, which held that New York’s wiretapping statutes were unconstitutionally overbroad, the combination of these two cases became the impetus for Congress to draft the federal Wiretap Act, which comprised Title III of the Omnibus Crime Control and Safe Street Act of 1968.2 Statutes in New York3 and other states soon followed suit.

The theoretical schematic of what constitutes illegal eavesdropping is one that would ultimately play a significant role nearly two decades later, when statutes protecting e-communications would come into existence. The critical concept introduced by the federal Wiretap Act was that the interception of a voice communication while “in transit” over the telephone wires is illegal.

As the dawn of computerized communication arrived and their prevalence in everyday life grew, Congress realized the need to enact a new statutory matrix to provide to e-communications the same protection afforded telephonic communication.4 The fear was that as the courts began to analyze such communications in a Fourth Amendment context, it would be determined that the senders and recipients would not have the same reasonable expectation of privacy in e-communications.

One way of interpreting the process of e-communication in a legal context is attempting to make as literal a comparison as possible to what is today sometimes referred to as “snail mail.” The closest equivalent of an e-mail to the physical world of letters and post offices is that an e-mail is roughly similar to a postcard in that its contents are visible to every person who comes across it. Since e-communications cross numerous computer systems on the way to their intended final destinations, the concern was that the only legal protection against unlimited law enforcement access to these communications would not be constitutional but statutory in nature.5

Hence, Congress enacted the Electronic Communication Privacy Act of 1986 (ECPA). In particular, Title II of the ECPA, the Stored Wire and Electronic Communication Act (SCA), laid out the new legal matrix.

Like voice communications, an e-communication intercepted “in transit” would require an eavesdropping order absent the consent of one of the parties for the communication’s release. Voice communications held in temporary storage by a communication provider awaiting transmission to its intended recipient could also only be similarly acquired by law enforcement. The USA Patriot Act of 2001 amended the SCA to permit voice communications in temporary storage with a provider to be obtained via a search warrant.

E-communications, which comprised almost every other form of communication other than a few exception not worthy of note here, could be acquired by law enforcement by less stringent legal process absent consent.

If the service provider handling the e-communication fits the SCA’s definition of “electronic communication service” (ECS),6 then a search warrant, supported by probable cause, is required for the release of any communication six months old or less.

After 180 days, an e-communication could be acquired via search warrant, or, if notice is provided to the subscriber of the account, via a subpoena or court order issued pursuant to 18 U.S.C. §2703(d) (often called a 2703d order).

A 2703d order, another form of ex parte order, requires from law enforcement a lower standard of proof than a search warrant. Such an order can issue as long as:

the governmental entity offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.7

If, however, the service provider fits the SCA’s definition of a “remote computing service” (RCS),8 then law enforcement need not even wait 180 days for the SCA to permit the alternative forms of acquisition of the contents of an electronic communication. All three methods (search warrant and subpoena or 2703d order with notice to the subscriber) are permitted no matter the age of the communication.

‘United States v. Warshak’

This legal matrix held until United States v. Warshak,9 where the U.S. Court of Appeals for the Sixth Circuit recently ruled that a person has a reasonable expectation of privacy in the contents of e-communications held by an ECS, even those more than 180 days old.

Hence, law enforcement’s acquisition of the contents of nearly 27,000 e-mails, all substantially more than six month old, violated the defendant’s Fourth Amendment rights even though the e-mails were properly secured via the requirements of the SCA.

The Sixth Circuit pursued the two-tiered subjective/objective expectation of Fourth Amendment privacy analysis, first easily concluding that Warshak, who ran a multi-billion dollar international company through the use of e-mail, clearly maintained a subjective expectation that his e-mails would be private.

Regarding the objective expectation requirement, the court did not look at e-mail’s content as the equivalent of a postcard, but that of a sealed letter going through the postal service. It held that mere access to the communication’s content did not mean Warshak lacked an objective expectation of privacy. The court analogized that a rogue mail carrier might rip open a sealed envelope and look at its contents. That did not remove the sender’s and recipient’s reasonable and objective expectation of privacy.

The court even used this argument to overcome the government’s position that Warshak’s user agreement with his e-mail provider permitted the company access to the contents of his e-mails.

In an indirect manner, the court did touch on the postcard analogy argument without specifically acknowledging its existence when it dismissed the “third-party access” rule of United States v. Miller,10 which held a law enforcement subpoena duces tecum valid where a bank depositor had no reasonable expectation of privacy in information he provided his bank.

The Sixth Circuit in Warshak distinguished the rule by finding Miller only applied to “simple business records” the bank used in the ordinary course of its business.

Another distinction was found in that the bank was the intended recipient of the information being conveyed by its customer, whereas the e-mail service provider is merely the intended intermediary holder of the information contained in an e-mail.

More Seismic Shifts

What Warshak exemplifies is part of a recent trend toward greater privacy protection from law enforcement’s ability to acquire information from e-communications. Spurred on in part by numerous legal commentaries promoting increasing Fourth Amendment protections,11 it appears as if judges are starting to heed these demands at various levels of e-communication law.

For example, former precedent permitted the acquisition of historical cell site tracking information with a 2703d order.12 A number of courts, however, have recently decided a search warrant based on probable cause is the appropriate standard.13

A third area of substantial change in e-communication law in 2010 has to do with what constitutes a communication “in transit” so as to come under the protection of the federal Wiretap Act.

Previously, it had been held that the copying of a received e-mail by compromising an e-mail server so the contents of the communication could be forwarded elsewhere did not constitute an eavesdropping violation because the e-mail was not intercepted in transit.14

Recently, however, a contrary ruling was made by the Seventh Circuit in United States v. Szymuszkiewicz.15 Here, the court relied on the rather innovative decision of United States v. Councilman16 to support its holding. All Councilman did was invent a previously unheard of concept which it called “transient storage” to rule that an e-mail that the defendant viewed after it had already arrived on his company’s server had been intercepted because it had not yet moved to the e-mail inbox of the company’s customer.

Such seismic shifts in communication law is not unprecedented. After all, for nearly 40 years, the U.S. Supreme Court’s position was that the literal language of the Fourth Amendment protected only places, not communications, so law enforcement’s warrantless interception of phone conversations was not suppressible in court.17

The law continued that way until Katz in 1967.

Congress also has expressed its recent interest in removing all SCA options other than search warrant.18 Just two weeks ago, Senator Patrick Leahy, D-Vt., introduced a bill directly on point.19


The recent trend toward greater Fourth Amendment protection may be for the overall good, but it presently puts law enforcement and those who routinely assist law enforcement in crime prevention in a precarious position.

When the foundational underpinnings of 25 years of the law’s treatment of e-communications are crumbling, legal predictability becomes tenuous at best. For example if Warshak did away with securing the contents of e-communications older than 180 days from an ECS with anything less than a search warrant, how will courts rule in the future about an RCS, which the SCA currently allows content to be secured by legal process less than a search warrant no matter what the age of the communication?

Consequences of the recent change in direction in the law are already being felt. America Online is refusing to release the contents of any communication, regardless of whether it is storing that communication as an ECS or RCS, unless a warrant supported by probable cause is provided.

There is even talk of certain law enforcement agencies intentionally seeking out judges who are willing to stand by previous precedent so as to force a collision amongst the various jurisdictions so as to force a resolution at the highest levels of jurisprudence.

Past advances in science and technology have tested the ability of the legal system to adjust, and such periods of transition are often unsettling. The concern with computer technology is that it may never stand in one place long enough for the law to completely and conclusively adapt.

Source The Fourth Amendment in a Brave New World

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