Fourth Amendment

The Fine Print in the Government's Privacy Policy

How technology and misguided legal reasoning have made your life an open e-book


In 1986 The American Banker defined E-mail as "a trademark of CompuServe," Computerworld noted that sending a single message required a 10-minute phone call, and InfoWorld described "a pilot scheme that will allow users of one system to send messages to mailbox holders on another." That was the year Congress enacted the Electronic Communications Privacy Act (ECPA), so it is hardly surprising that the once forward-looking law seems antiquated today. 

In fact, ECPA is so out of date that it has left us vulnerable to government snooping in ways most Americans do not appreciate. With the Senate Judiciary Committee considering possible fixes this week, now is a good time to reflect on how technological advances and misguided legal reasoning have eroded the Fourth Amendment guarantee against unreasonable searches of our "papers and effects," which nowadays take forms the Framers could not have anticipated. 

Computerworld described ECPA as a law regulating "the interception of data communications, such as electronic mail and bulk data transfers, during transmission and while stored in a computer." According to a Senate report, the legislation was supposed to strike "a fair balance between the privacy expectations of American citizens and the legitimate needs of law enforcement agencies." 

Since ordinary paper mail and telephone calls have long enjoyed Fourth Amendment protection, you might think such a law would be unnecessary. But a series of Supreme Court decisions dealing with information held by third parties, including tax, bank, and phone records, had left the constitutional status of email highly uncertain. 

As a 1976 decision put it, "This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed." This logic suggests we have no constitutional right to privacy in the personal data we routinely exchange and store via the Internet; hence the need for a statute like ECPA. 

But the law, written during a time of dial-up connections and expensive data storage, draws distinctions that no longer make sense now that people are online all the time and commonly keep years of messages, photos, contacts, calendars, and word processing files on servers located hundreds of miles away. Under ECPA, for instance, law enforcement agencies must obtain a judicial warrant based on probable cause to read unopened, remotely stored email that is up to six months old. But they can look at email that has been opened or retained more than six months (i.e., anything important) simply by claiming it is "relevant and material to an ongoing criminal investigation." 

As George Washington law professor Orin Kerr observes, ECPA "offers surprisingly low privacy protections when the government seeks to compel contents other than unretrieved communications held pending transmission for 180 days or less." In fact, depending on how the statute is interpreted, information stored online through services such as Gmail and Facebook, including a great deal of sensitive material that people do not intend to share with the world, may not be protected at all. 

The law is also hazy on the question of whether police need a warrant, a court order, a subpoena, or simply a whim to obtain geolocation data showing everywhere you and your cellphone have been. While the Supreme Court ruled in January that police need a warrant to track a suspect by attaching a GPS device to his car, it left unresolved the constitutionality of surveillance that does not require a physical trespass, as Justice Sonia Sotomayor noted in a concurring opinion. 

Sotomayor suggested "it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties." Without such a reconsideration, more and more of what you thought was your private business will become an open e-book. 

NEXT: The Echo Chamber in Thomas Friedman's Head

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  1. Sometimes man you jsut gotta roll with the punches!

  2. Sounds liek a pretty worthy idea to me dude.

      1. gah, stupid bracket

  3. The state can do whatever it wants unless it’s expressly prohibited by law, and only specifically that thing. Of course if it can’t subtly get around a specific, narrow restriction, it can just change the law, or add another as a bypass like National Security Letters.

    Even warrants are not enough. They’re often rubber stamped and it’s all good because that’s “the rule of law”. Rather than trying to strike a compromised balance all based on procedure, where merely following procedure itself results in the same rubber stamping, I like Rothbard’s suggestion when he discussed wiretapping: remove sovereign immunity.

    A criminal loses his rights for the extent he has not made restitution, so ethically speaking, wiretapping, invading his property would not be in violation of his rights. However, if law enforcement or the FBI or whatever government agent has the wrong guy, or if they do this as a fishing expedition, then they have violated his and/or his service providers’ rights, and would then themselves be liable for wrongdoing.

    1. The state can do whatever it wants unless it’s expressly prohibited by law

      Once upon a time, that was the distinction between America and European countries – in America the people had all the rights and government was granted a few rights rather than the king having all the rights and granting a few to his subjects. In America, anything not specifically prohibited was allowed unlike in some European countries where anything not specifically allowed was prohibited.

      Once upon a time, anything not specifically allowed by law to the government was prohibited. Sadly, I can’t argue any more that your first sentence is exactly backward – the way it should be here in America.

  4. Much as I enjoy visiting H&R and staying in touch w/friends and relatives via the socialist media, I’m THIS close (holds index finger and thumb not very far apart) to just chucking it all.

    Gummint can haz what info they already got – can’t do anything about the history. But limiting new entries as much as possible going forward is more and more appealing. Hard to eliminate it entirely given the way things work now, but I’m pretty sure I can make my footprint much smaller and confusing, even as relatively tech unsavvy as I am.

    I remember thinking how much like “1984” the US was in 1984. It’s only gotten more horribly wrong in the 28 years since.

    Also, no, fuck you, cut spending.

    1. Give it up: if the government wants to get you, they’ve already got more than enough information. It’s the same reason why I eventually gave up and started using GMail instead of running my own email server: the Borg already has access to all of my data because everyone else is already using GMail, so why fight it?

      I recommend the opposite approach: be libertarian and be noisy about it. Normalize the act of questioning authority and challenging the status quo. It’s part of the reason I don’t post much here anymore: this is an echo chamber. You’ve got to get out there and annoy the fuck out of people where they don’t normally hear libertarian voices. Facebook is a good place to reach people who haven’t had an independent thought in their heads since shortly after entering kindergarten.

      1. Get them where they live, and that would be on Facebook! Okay, that is the epitome of a hopeless situation.

        1. Feel free to concede defeat at the start. IMO, you have to start somewhere.

      2. …this is an echo chamber. You’ve got to get out there and annoy the fuck out of people where they don’t normally hear libertarian voices. Facebook is a good place to reach people who haven’t had an independent thought in their heads since shortly after entering kindergarten.

        This, this, 1000X THIS!!
        The Facebook threads for the Reason articles are full of statists, slavers, TEAM RED/BLUE cheerleaders, disciples of T o n y/Minge, and a fellow named Robert who spews a lot of the same Stack/Godeski/WI bullshit. The Facebook page for C-SPAN is a decent place to discuss things with ideological opponents (when its not an election cycle). It stays pretty civil (except when I’m telling all the slavers to fuck off) and the C-SPAN audience base seems slightly more intellectually equipped than the average Facebook user.

      3. Fair point, square. That’s exactly what I do now. Had my own “Almanian for President” page, put out all my “I’d eliminate every fucking ‘Agency’ and ‘Commission’ not in the Constitution as a start…and then we’ll cut some more.” Post articles there (some from Reason even!).

        Part of the above sentiment is because keeping on in some ways feels more like giving up than at lest TRYING to hide.

        But it all may be pointless and you may be right – hence why I haven’t cashed in just yet….and ultimately may not.



    /pitiful mouse giving the finger to the eagle gesture of resistance

  6. As Jacob notes, there’s a general undercurrent of impatience with ECPA (discussed in my blog) since the Petraeus debacle, but I’m afraid the commenters above are pretty much right–the horse is long gone from the barn. And, as one of the articles I link to points out, even using the various anonymity tools is not foolproof, because it’s very easy to slip just once, and a determined GUBMINT will get in. Not much we can do about it, I’m afraid, but I still post the occasional H&R article on my FB page. Makes me feel better, anyway.

    1. I guess the squirrels won’t let me post a weblink. Anyway, it’s linked from my name, so if you’re interested, try that.

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