In Fourth Amendment law there is a concept called the third party doctrine - the basic idea is that if you hand something over to a third party, the Constitution does not require the police to get a warrant to get access to it. This is as opposed to a situation where you kept that something in the privacy of your home, where the police would need a warrant and a full showing of probable cause in order to perform a search.

What does this mean for email that you've stored on your ISP's mail servers? Like many things with the law, there are differing views. There is a law called the Electronic Communications Privacy Act (ECPA), passed in 1986, which requires the police to get a warrant for email stored less than 180 days. However, email stored longer than 180 days (such as in your long term gmail archive) might be available to the police with a subpoena, which is an administrative request that does not require court oversight or a showing of suspicion.

A coalition of tech companies called the Digital Due Process Coalition is asking Congress to change the ECPA to require a warrant to access email stored longer than 180 days. The DOJ, not surprisingly, is opposed to this change. In their response they made an argument that I found rather shocking:

"Current law allows for the acquisition of certain stored communications using a subpoena where the account holder receives prior notice. This procedure is similar to that for paper records. If a person stores documents in her home, the government may use a subpoena to compel production of those documents. Congress should consider carefully whether it is appropriate to afford a higher evidentiary standard for compelled production of electronically- stored records than paper records."

What the DOJ seems to be saying here is that they can read any paper document stored in your home, without a warrant, merely by asking you for it! If they subpoena it you have to provide it and if you destroy it you can be changed with obstruction of justice. Could this be true? If so, it would mean that the entire contents of your computer are available to the police for inspection without a warrant. How does that square with the 4th Amendment's protection of "papers."

It turns out that this is another case where strong protections provided early in the history of the United States have been slowly eroded by the courts over two hundred years. In the early 1900s it was decided that the 4th Amendment doesn't apply to subpoenas, but you could rely on the 5th amendment to refuse to provide documents that you didn't want to provide, as long as they were your documents. Then in the 1970's it was decided that you couldn't rely on the 5th amendment either. I... [ Read More (0.6k in body) ]