If you live long enough, you will find a subject upon which you can agree with your worst adversary. We are really not that political. We represent, or at least consider representing, anyone who walks through our firm’s door. We’ve learned over time that crime, and those who get charged with it, has no political affiliations. Accused criminals come from every walk of life: all races, every ethnicity, each gender (and cross-gender), the rich, the poor, the young, the old. The “the good, the bad, and the ugly” all have one thing in common when the Government charges them with a crime: they need a lawyer.
But in a larger context, we tend to generally come down on the opposite sides of criminal justice issues with Republicans who tend to be a little too hawkish or law-and-order issues to suit us.
We prefer the side of moderation in social and political issues, which can be a highly suspect position in today’s polarized political divide. So we were more than a little surprised to learn that Republicans, who have no problem invading the privacy of your bedroom or your body, do not like having their email communications snooped on by the Government, at least the current Government.
The British-based newspaper, the Guardian, and the Washington Post, broke joint stories in early June about secret surveillance programs operated by the National Security Agency and the FBI which monitor telephone calls and emails of Americans and foreign nationals in an effort to detect and prevent acts of terror both inside this country and abroad. James Clapper, the nation’s director of national intelligence, dismissed the media reports that “Big Brother” has arrived. Clapper pointed out it would be physically impossible for the Government to listen to all our phone calls and/or read all our emails. Still, the reports caused many people to be more circumspect about what they say to friends, family, and associates through the electronic communications. That’s being prudent.
There are two primary Federal surveillance laws in this country: the Foreign Intelligence Surveillance Act of 1978 (“FISA”) and the Electronics Communications Privacy Act of 1986 (“ECPA”). While protecting individual privacy from unlawful intrusions by other individuals, the ECPA also permits the collection of information about criminal activity. FISA has no such concern. Its authorization is confined strictly to collection of information about foreign nations and their agents. In the wake of the 9/11 terror attacks, Congress enacted the Patriot Act of 2001 which increased the authority of the Government to conduct “national security investigations” designed to detect and prevent acts of terror. In many respects, the Patriot Act tore down the wall between intelligence and law enforcement investigations erected under FISA thereby effectively expanding the use of related statutes like ECPA to simultaneously investigate both criminal and national security concerns.
This brings us back to the email snooping issue and individual privacy concerns. As part of ECPA, Congress in 1986 also enacted the Stored Communications Act (“SCA”) which allows the Government to obtain electronic communications, including emails, under certain circumstances. Under this act, he Government can compel an Internet service providers (“ISP”), such as Google and Yahoo, to disclose the contents of emails.
First, and foremost, the Government must have a warrant to gain access to individual emails which have been in electronic storage with the ISP for less than 180 days. The Government, however, has three options for gaining access to emails in electronic storage with the ISP for more than 180 days: 1) obtain a warrant from a magistrate based on probable cause; 2) use an administrative subpoena; or 3) obtain a court order.
These prerequisites to email disclosures establish that an individual using an ISP to send/receive electronic communications has some Fourth Amendment guarantee of an expectation of privacy in those communications. At least three federal courts of appeal have recognized this right of privacy: Ninth Circuit, Fifth Circuit, and Sixth Circuit. In a December 2010 decision, the Sixth Circuit posed this question:
“The next question is whether society is prepared to recognize that expectation as reasonable. This question is one of grave import and enduring consequence, given the prominent role that email has assumed in modern communication … Since the advent of email, the telephone call and the letter have waned in importance, and an explosion of Internet-based communication has taken place. People are now able to send sensitive and intimate information, instantaneously, to friends, family and colleagues half a world away. Lovers exchange sweet nothings, and businessmen swap ambitious plans, all with the click of a mouse button. Commerce has also taken hold in email. Online purchases are often documented in email accounts, and email is frequently used to remind patients and clients of imminent appointments. In short, ‘account’ is an apt word for the conglomeration of stored messages that comprises an email account, as it provides an account of its owner’s life. By obtaining access to someone’s email, government agents gain the ability to peer deeply into his activities. Much hinges, therefore, on whether the government is permitted to request that a commercial ISP turn over the contents of a subscriber’s emails without triggering the machinery of the Fourth Amendment.”
While some courts have recognized that the Fourth Amendment “must keep pace with the inexorable march of technological advances” lest its guarantees “wither and perish,” state courts and lawmakers have remained behind the curve on this vexing constitutional issue. Not Texas. Dominated by conservative Republican lawmakers, the 2013 Texas Legislature unanimously passed a law that creates email privacy protections more sweeping most other states.
Under the Texas law, there must be probable cause to believe that an email contains evidence of a crime before law enforcement can access it. Snooping and data mining are not permitted under the law.
While recent research by the Pew Research Center reveals that 56 percent of Americans have no problem with a “blanket compilation” by the Government of their telephone calls to prevent terrorism, only 52 percent believe the Government should snoop on their emails to prevent terrorism. The most interesting revelation in the research is that Republicans over the past decade have become more opposed to email snooping than Democrats (13 to 8 percent). This perhaps explains the extraordinary action by the Texas Legislature requiring a probable cause-supported search warrant before law enforcement can access emails.
We find ourselves in complete agreement with the Republicans and the Sixth Circuit that law enforcement should have a search warrant based on probable cause before it can access our emails. It stretches intellectual honesty for the courts to continue writing opinions that entertain the fantasy that users of e-mail do not have an expectation to privacy in their communications.  It’s time for the courts to enter the online age.