The Wall Street Journal reported today that the Justice Department recently obtained secret court orders forcing Google and a company called Sonic to release scores of emails of WikiLeaks volunteer Jacob Applebaum without Applebaum’s knowledge. The use of secret court orders has been controversial, and is at the center of a larger debate about privacy in the electronic age. Rapidly-advancing technology is challenging the law of privacy every bit as much as the way business is done around the world.
In most parts of the country, as I will explain later, the standard the government needs to get your emails stored with a third party (e.g., a Goggle Gmail account) is much lower than to get them from your home computer. According to the WSJ article, for emails stored off-site, “[t]he government must show only ‘reasonable grounds’ that the records would be ‘relevant and material’ to an investigation.” With your home computer, the government must obtain a warrant by showing probable cause that you have committed a crime. So, if you are a member of a Tea Party group, and the government is investigating whether or not Tea Partiers are in fact terrorists, the government could potentially get your emails from your Internet Service Provider without you ever knowing.
The legal basis for these warrantless searches Electronic Communications Privacy Act of 1986. Many want the ECPA updated so that emails and cell phone calls receive the same level of protection as snail mail and landline phone calls. Others argue that restricting government’s the access to modern communication means would seriously hamper law enforcement and the War on Terror.
In the absence of Congressional action, however, the courts may take matters into their own hands. For example, last December, the Sixth Circuit Court of Appeals (Kentucky, Michigan, Ohio, Tennessee) held that warrantless email searches violated the 4th Amendment’s prohibition on warrantless searches and seizures. So in at least four states secret court orders for emails have been discontinued (there may be more, but I was unable to find any other cases). But the fact that the Justice Department was able to get Jacob Applebaum’s emails tells us that the practice is still permitted in at least some parts of the country.
Yahoo! also fought a government request for a secret order forcing the company to hand over emails. The government eventually dropped the request, which has been reported as a common practice where the government seeks a secret order and drops the request if it thinks it might lose, in order to avoid an adverse ruling and opinion.
Assuming that Congress takes no action, should courts require the government to show probable cause to access your offsite emails? The standard is whether you have a “reasonable expectation of privacy” in your emails. The Sixth Circuit said yes, but does that comport with reality when private companies are able to access your computer any time you are connected to the Internet? Do we really have a reasonable expectation of privacy in the cyber-universe?
In other words, suppose you are a federal magistrate (outside the Sixth Circuit). The government comes to you and requests a secret order to compel Google to hand over the emails of a terror suspect. Would you grant the order or would you hold that the request violated the 4th Amendment?
This article is also posted at The Country Thinker.