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. If a document was requested you had to provide it. The thinking went that the 5th amendment only protects you against testifying and providing a document that already exists isn't testimonial as long as everyone already knows that you have the document.

Fortunately in the past decade the courts have created a "reasonable particularity" standard for these subpoenas. The police have to request specific documents that they can show that they know you have. If they don't really know whether or not you have the documents, or their request is too vague (i.e. "your whole hard drive please"), your act of producing the specific documents that you have answers the question of which documents you have and which documents you don't have, which is, itself, a testimonial act that you cannot be forced to perform.

This has a couple of implications.

The first is that the courts don't believe that the 4th Amendment protects the privacy of documents that you keep in your house that the police know that you have. For example, if you keep a private diary and the police know you keep it, they can request to see it and you may have no choice but to show it to them. This is a surprise to me and I personally don't think thats right. I think the 4th Amendment was intended to prevent that sort of situation and I think that it ought to. But that may be the law as it stands today.

Regarding computer files, according to the way the courts interpret the Constitution, if the police can establish that you have a computer file they can request to read it. For example, your email client stores sent items. Normally, the police would not be able to read the email that you sent which is stored on your computer in your home without a warrant and a showing of probable cause. But they can use a court order without a showing of probable cause to get access to the email logs from your ISP. This will tell them who you sent email to and when. Therefore, having established that they know you sent these emails and they know your email client archives them, they could subpoena the text, again without a showing of probable cause. So this subpoena process, coupled with our interpretation of the 5th amendment, gives the police a way to read your email without a showing of probable cause.

Again, I don't think thats right - if the police tried to do that I don't think it would hold up in court, but in order to bar this sort of action a whole new philosophy of interpretation of the 4th and 5th amendments regarding subpoenas of personal documents would have to be crafted by the court system whole cloth.

But at least the 5th amendment offers you something. The police cannot simply ask you to hand over your hard drive - they have to request specific things that they know you have. When your information is stored by a third party, the 5th amendment doesn't apply. The police can request all the information there and their request does not have to be "reasonably particular."

This is how we get to the problem with the DOJ's statement. They say "Congress should consider carefully whether it is appropriate to afford a higher evidentiary standard for compelled production of electronically- stored records than paper records." But there is a specific context here where we're comparing paper records stored in the home versus electronic records stored by a third party. There is a higher requirement for particularity imposed by the Constitution on police requests for paper records stored in the home, than for police requests for electronic records stored by a third party, because the 5th amendment applies in one of these cases and not in the other. This requirement for "reasonable particularity" is thought to prevent the use of subpoenas to go on fishing expeditions through people's private information.

Therefore, it might be appropriate for Congress to afford a higher evidentiary standard in the context of electronic records held by third parties - to offset the lower particularity requirement. Otherwise, with a low evidentiary requirement and a low particularity requirement, fishing expeditions into innocent people's email are possible. Of course, this thought is complicated enough to be confusing to the people who might read the DOJ's testimony.

Frankly, a higher evidentiary standard might also be appropriate because the current evidentiary standard required to access paper records in the home is too low. I don't believe that the framers of the Constitution intended to permit the police to demand the right to read people's personal diaries kept in their homes without a showing of probable cause. Words mean things. The framers wrote the word "papers" into the 4th amendment for a reason.