Privacy and Law Enforcement

By: Matt Rotbart

Our reading on privacy and law enforcement focused on the tension between privacy and security and the roles of the Fourth and Fifth amendments. Among other things, we reviewed pursuant to 39 U.S.C. §3623(d) that sealed letters “shall not be opened except under authority of a search warrant authorized by law” (Casebook at 249).

On Tuesday, March 19th, Senators Mike Lee (R-Utah) and Patrick Leahy introduced an amendment to the Electronic Communications Privacy Act (ECPA) that would require government officials and law enforcement officers to obtain a search warrant when accessing emails and other electronic messages. Currently, the ECPA allows law enforcement officials to obtain emails, and other electronic material, that has been in storage for more than 180 with only a subpoena. The ability of government officers to obtain private email correspondence after a period of time intuitively seems to conflict with the requirement of obtaining a warrant for sealed messages sent through U.S. Postal Service. It is also troublesome that material which has been in storage for less than 180 days requires a search warrant under the ECPA, but after the 181st day, the Fourth Amendment appears not to apply.

What’s the difference between obtaining a subpoena and a search warrant? Subpoenas only require a showing that information sought by the government is relevant to an investigation. Search warrants, on the other hand, require a judge to determine that the police have “probable cause” under the Fourth Amendment to believe that the material sought will yield evidence of a crime.

Google and other digital rights activists are leading the charge for this amendment; they argue that the ECPA – which was passed in 1986 – is severely outdated. Google has had an ongoing struggle with law enforcement officials over which instances it is permissible to reveal private user information. In some cases Google has refused to turn over information that has been stored for longer than 180 days in direct violation with the ECPA. Google has based this decision in part on the Sixth Circuit’s 2010 ruling in U.S. v. Warshak. In that case, the court held that the Fourth Amendment requires law enforcement authorities to obtain search warrants to access people’s emails, notwithstanding the ECPA. This particular issue has not yet reached the Supreme Court, and may become a nonissue if the proposed amendment passes.

Attached is a link to the MediaPost article on this topic, as well as a link to the Sixth Circuit’s decision, and a link to Google’s Privacy Blog: