In crafting a general list of things in which citizens had a right to be secure, nobody thought to include the word “email.”  Rather thoughtless in retrospect, but there were limits to even Jefferson’s prescience. 

While Congress and the courts have struggled with how to assure that our deepest thoughts would be subject to government scrutiny, just in case they were dark thoughts, the Sixth Circuit Court of Appeals has opined that our thoughts contained in emails, despite the hyper-technical path they follow as electrons through a maze of boxes and wires, are worthy of security.

Via Orin Kerr at Volokh Conspiracy, from the decision in United States v. Warshak :

Email is the technological scion of tangible mail, and it plays an indispensable part in the Information Age. Over the last decade, email has become “so pervasive that some persons may consider [it] to be [an] essential means or necessary instrument[] for self-expression, even self-identification.” Quon, 130 S. Ct. at 2630. It follows that email requires strong protection under the Fourth Amendment; otherwise, the Fourth Amendment would prove an ineffective guardian of private communication, an essential purpose it has long been recognized to serve. See U.S. Dist. Court, 407 U.S. at 313; United States v. Waller, 581 F.2d 585, 587 (6th Cir. 1978) (noting the Fourth Amendment’s role in protecting “private communications”). As some forms of communication begin to diminish, the Fourth Amendment must recognize and protect nascent ones that arise. See Warshak I, 490 F.3d at 473 (“It goes without saying that like the telephone earlier in our history, e-mail is an ever-increasing mode of private communication, and protecting shared communications through this medium is as important to Fourth Amendment principles today as protecting telephone conversations has been in the past.”).

If we accept that an email is analogous to a letter or a phone call, it is manifest that agents of the government cannot compel a commercial ISP to turn over the contents of an email without triggering the Fourth Amendment. An ISP is the intermediary that makes email communication possible. Emails must pass through an ISP’s servers to reach their intended recipient. Thus, the ISP is the functional equivalent of a post office or a telephone company. As we have discussed above, the police may not storm the post office and intercept a letter, and they are likewise forbidden from using the phone system to make a clandestine recording of a telephone call—unless they get a warrant, that is. See Jacobsen, 466 U.S. at 114; Katz, 389 U.S. at 353. It only stands to reason that, if government agents compel an ISP to surrender the contents of a subscriber’s emails, those agents have thereby conducted a Fourth Amendment search, which necessitates compliance with the warrant requirement absent some exception.

Technology is here to stay, and every day brings yet another product to the market that alters our means of interacting.  Neither the law nor the courts have been, or will be, capable of keeping pace.  As we adopt new technologies, we do so under a generic assumption of normalcy, that we aren’t giving the government carte blanche to peer into our lives, words, thoughts or deeds.  We try not to think too hard about it, because we really don’t want to address what we fear to be true in the back reaches of our mind, that there is no privacy left.

The Warshak decision strikes a major blow against the machine, rejecting the electron path of Fourth Amendment analysis in favor of a Katzian approach.  We expect our private communicates to be private, and Warshak says that’s a reasonable thing to do.

The decision is based, however, on an unfortunately shaky foundation, noted in the emphasized language in the quote above, analogizing email to a letter or phone call.  While this would be the analogy I would chose if anybody asked me, the court could have just as easily adopted a different analogy and turned the decision upside down. 

Just as our “papers and effects” when contained in the electrons of our laptops have been analogized out of the 4th, so too could  our emails should the analogy focus on their being in the  hands of third party ISPs rather than our expectation of privacy. 

Orin is pleased with both the outcome and rationale of Warshak.

I think that is correct, for reasons I have explained before. Under the Court’s reasoning, then, 18 U.S.C. 2703(b) is unconstitutional at least in most applications– which, again, I think is correct. This is a very important opinion, and there’s a lot in there, but based on a first read it strikes me as quite persuasive and likely to be an influential decision going forward.

It’s hard to blame him, as this opinion comports with both his analysis of how electronic communications should be treated, as well as his  tech neutral approach to search and seizure law.  The gist is that courts should apply the jurisprudence developed since bootlegger says to new technology rather than reinvent the wheel.  He contends that, contrary to my skeptical assertions, this can result in a principled approach that maintains protections to our 4th Amendment rights against unreasonable search and seizure. 

I’ve contended that the exceptions have long since swallowed the rule, and importing bad law to new technology is tantamount to eviscerating the 4th Amendment before the technology is even invented.  I’ve also argued that winning the battle, under Orin’s approach, is little more than a game of rhetoric, the winning side being the one whose analogy either strikes the court’s fancy or best meets the judges’ luddite comprehension of the digital world.

Based upon the Warshak decision, it would appear my fears are unfounded, and that the court arrived at the right analogy, and therefore the right outcome, despite my cries that the sky could fall.  I’m unswayed.  It’s not that Orin’s theory hasn’t worked out in this instance; it has and it’s worked wonderfully.  Rather, one decision in one circuit is not a jurisprudence.

It’s not that the Warshak decision could be chalked up to the blind squirrel rule.  The opinion contains some wonderful language expressing what we need of a court protecting our notion of privacy.

It follows that email requires strong protection under the Fourth Amendment; otherwise, the Fourth Amendment would prove an ineffective guardian of private communication, an essential purpose it has long been recognized to serve.

Had this been where it ended, that our need to be capable of being secure in our communications without regard to how many digital hands held it, copied it, touched it, stored it and passed it along, this would be a different post.  What remains needed is an affirmative, unqualified holding that electronic communications, notwithstanding the mechanics of how they get from our fingers to our recipients eyeballs, are secure under the Fourth Amendment.

Whether this decision will hold up has yet to be seen.  Orin finds it persuasive, and because of its outcome, I certainly hope he’s right.  But emails aren’t the only technological issue confronting our courts, and praying that the right analogy is adopted hardly gives me the warm and fuzzies. The challenge of adopting historic search and seizure jurisprudence to new technology can’t be left to hit and miss analogy. 

We need to know that our electrons, our thoughts, our idea, no matter what form they take or mechanism they travel, remains ours.  We need better than a fortuitous choice of analogies to know that there will be some privacy left in a digital world.