Blown To Bits

Email and the Fourth Amendment: “Degradation of civil rights”?

Wednesday, July 16th, 2008 by Harry Lewis

Can the government search your email without telling you it is doing so?

The USA PATRIOT Act gives the federal government broad authority to search electronic communications crossing the US border, under the general guise of anti-terrorism and the rough analogy that the government could search your possessions as you brought them into the country. But what about purely domestic eavesdropping, not part of any terrorism investigation?

In an important 8-5 decision, the Sixth Circuit Appeals Court has ruled that such clandestine searches of email are at least sometimes not “unreasonable searches” in the sense of the Fourth Amendment. The Register (UK) has an excellent summary of the ruling is in an article aptly called “Court cheers warrantless snooping of e-mail.” The Court’s decision is here. It doesn’t actually endorse the constitutionality of the law under which the clandestine email snooping took place, saying instead that the issue was not “ripe” for a decision on constitutional grounds. The defendant, Steven Warshak, could have used other means to keep the evidence out of court.

The dissenting opinion of Judge Boyce Martin and four other judges takes a far dimmer view. I quote its last paragraph in full:

While I am saddened, I am not surprised by today’s ruling. It is but another step in the ongoing degradation of civil rights in the courts of this country. The majority makes much of the fact that facial challenges are no way to litigate the constitutional validity of certain laws. Yet our Supreme Court has no problem striking down a handgun ban enacted by a democratically elected city government on a facial basis. See Dist. of Columbia v. Heller, — U.S. —, 2008 WL 2520816 (June 26, 2008). History tells us that it is not the fact that a constitutional right is at issue that portends the outcome of a case, but rather what specific right we are talking about. If it is free speech, freedom of religion, or the right to bear arms, we are quick to strike down laws that curtail those freedoms. But if we are discussing the Fourth Amendment’s right to be free from unreasonable searches and seizures, heaven forbid that we should intrude on the government’s investigatory province and actually require it to abide by the mandates of the Bill of Rights. I can only imagine what our founding fathers would think of this decision. If I were to tell James Otis and John Adams that a citizen’s private correspondence is now potentially subject to ex parte and unannounced searches by the government without a warrant supported by probable cause, what would they say? Probably nothing, they would be left speechless.

2 Responses to “Email and the Fourth Amendment: “Degradation of civil rights”?”

  1. Blown to Bits » Blog Archive » Border Searches and Email Privacy Says:

    […] Mark Rasch is a security expert and lawyer practicing in Washington, DC. He has written two good pieces about important issues on blogged here: The government’s new policy about searching and seizing laptops at the border (which I blogged here), and the¬†case of Mr. Steven Warshak, where the feds have successfully asserted their right to snoop email without a warrant (which I blogged here). […]

  2. Mike Sandman Says:

    I will appreciate more info on this.