Orin Kerr at  Volokh provides a very lengthy discussion of a Ninth Circuit case, United States v. McCreary, argued but not yet decided, dealing with whether the old, common practice of using pagers to send messages is disclosable via subpoena or warrant.  I know, pagers are dead, but this still matters because the same idea will apply to a variety of current communication methods. 

Orin raises three questions:

First, does the legitimate user of a text pager system generally have a Fourth Amendment reasonable expectation of privacy in the contents of his messages? Second, if so, do the facts of McCreary’s usage of the pager system fall within that general rule of Fourth Amendment protection? And third, if the Fourth Amendment protects the pager messages, did the subpoena violate the Fourth Amendment?

Believe it or not, Orin’s  discussion of these questions is really quite interesting and worth the time to read.  Rarely are such academic discussions as comprehensible and worthwhile.  When you’re done, unfortunately, you find yourself in the same place as where you started.  There are good reasons to go subpoena.  There are good reasons to go warrant.

I hope the court requires warrants.  I know, what a shock.  But I actually have a semi-doctrinal basis for coming out with the obvious answer.  The sender and receiving of the communication expect it to be confidential, notwithstanding the technological capacity of the third party carrier to access anything and everything.  While Katz may not create a general right of privacy, it does hold that the reasonable expectations of the parties prevail. 

If the Ninth Circuit looks to the reasonable expectation of normal people, as opposed to engineers in the employ of communications carriers or government lawyers, the issue becomes clearer.  Normal people believe, and want to believe, that their communications, whether over copper, fiber optic, radio waves, whatever, are their and theirs alone.  It is not unreasonable to expect that government would keep its nose out of your happy birthday call to Aunt Mary.  It may be technologically unreasonable, but as Justice Scalia can remind us, the founding fathers didn’t have email addresses.

But I have a counterview as well.  Given the pace of technology, combined with the evisceration of the 4th Amendment in general, there is little expectation that this will really amount to much at the street level.  While it would make for a fascinating classroom discussion, it has little to do with real life.

Can you imagine explaining to your client, in Spanish, the nuances of McCreary with regard to his technological choices?  Or how about training Officer O’Reilly on the topic?  Both want to know the same thing:  Yes or No.  Can I do it or not.  It reminds me of the many discussions about the “automobile exception,” as each new decision would expand the power of the cops into another container or area, until the rule finally became cops an search cars whenever they damn well please.  (Only kidding, sorta).

So let’s go down the brightline test road, because these doctrinal discussions of how the fourth amendment applies to ever-changing technology makes it impossible to know what to tell clients, and for clients to know what their rights are.  Sure, I would prefer a bright line test that says that all the communications, regardless of the fact that they are stored in somebody’s mainframe somewhere, are still private.  But I frankly expect some courts, if not all, to go down the convoluted doctrinal path that will not only eliminate warrant requirement, but make it so unclear that nobody quite understands the law anyway.

So, while Orin Kerr indulges in a very thoughtful and well-conceived academic discussion on whether subpoena will do or a warrant need be obtained, it seems that Philistines like me just want something we can rely on when we deal with our clients and our cops in the trenches.  Given our low expectations, just tell us that the 4th Amendment applies to transmitted communications the same way it applies to automobiles, and we’ll get the message.  It may be totally wrong, but at least we’ll know what to do.