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) ]

Decius wrote:

If a person stores documents in her home, the government may use a subpoena to compel production of those documents.

After a lot of digging and a couple of email exchanges with law profs my understanding is that the 5th Amendment would afford you some protection against subpoenas of this kind, provided that the government did not know exactly what was looking for, which you would not be afforded in the context of a third party email provider. Here is the full quote in context:

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.

The problem with this position is that it ignores the fact that under current law the 5th amendment would come into play in this "documents in her home" scenario but not in the third party email provider scenario contemplated by the ECPA. The absence of that protection in the third party context is one of the reasons that additional regulation, such as the ECPA, is needed. IE - the higher evidentiary standard is needed to offset the lower particularity standard.

RE: DOJ argues that warrants have never been required for paper documents

Its comforting that there is, occasionally, a court decision that upholds individual rights.

Because the government has failed to show with reasonable particularity that it knew of the existence and location of most of the subpoenaed documents, we hold that Ponds' act of production was sufficiently testimonial to implicate his right against self-incrimination under the Fifth Amendment to the Constitution.

454 F3d 313 United States v. Ponds | OpenJurist

There is a particularity standard with a developed body of law in the search warrant area that now appears to be imported into the test for assertion of the act of production Fifth Amendment objection to compulsory testimony. Bottom line, that test will guard against unfocused fishing expeditions.

This is interesting but its about as clear as mud. If the police can subpoena a whole diary they know you have what is to say they cannot subpoena a whole hard drive they know you have? What is "reasonably particular?"

Also, say for instance, that through an administrative subpoena the police obtain noncontent information about emails - the dates, to, and from information. They can then subpoena the contents, without a warrant, if they think you've got those contents on your hard drive. The specific emails ought to be "reasonbly particular" enough.

Federal Tax Crimes: Act of Production Doctrine and Particularity

This paper introduces the compelled cer-
ticate creation attack, in which government
agencies may compel a certicate authority to
issue false SSL certicates that can be used by
intelligence agencies to covertly intercept and
hijack individuals' secure Web-based commu-
nications. Although we do not have direct ev-
idence that this form of active surveillance is
taking place in the wild, we show how prod-
ucts already on the market are geared and mar-
keted towards this kind of use|suggesting such
attacks may occur in the future, if they are
not already occurring. Finally, we introduce
a lightweight browser add-on that detects and
thwarts such attacks.

Certified Lies: Detecting and Defeating Government Interception Attacks Against SSL

How your rights dissolve...

In the nineteenth century, the courts initially provided virtually absolute protection of papers held by the target of an investigation, first based solely on the Fifth Amendment's prohibition of compelled testimony and then, after Boyd v. United States, based on both the Fifth Amendment and the Fourth Amendment's prohibition of unreasonable searches and seizures. In the twentieth century, the Supreme Court reversed itself, eventually eviscerating both Fourth and Fifth Amendment limitations on subpoenas. But the early cases doing so all involved government attempts to regulate businesses; not a single one of them involved searches of personal papers, which these cases routinely indicated were still protected from government seizure by the Fifth Amendment (although no longer by the Fourth).

SSRN-Subpoenas and Privacy by Christopher Slobogin

If a person stores documents in her home, the government may use a subpoena to compel production of those documents.

This is a shocking position - basically the DOJ is saying here that warrants have never been required to access paper records - that computer records, regardless of where they are stored, have always been available to the police without any standard of suspicion, any warrant, any court oversight - how can that be true?!

DOJ argues that warrants have never been required for paper documents

Congress should recognize the collateral consequences to criminal law enforcement and the national security of the United States if ECPA were to provide only one means — a probable cause warrant — for compelling disclosure of all stored content. For example, in order to obtain a search warrant for a particular e-mail account, law enforcement has to establish probable cause to believe that evidence will be found in that particular account. In some cases, this link can be hard to establish.

It doesn't matter who wins the election in 2012. Either way, we loose. Our constitutional rights will continue to be eroded by people who do not understand or respect the underlying reasons that they exist and see them only as obstacles to be negotiated with and rationalized away.

Obama doesn't think he needs a warrant to read your old email

My comments:

What a terrible ruling. Flores-Montano was not a general ruling about all different kinds of property. It was specifically about GAS TANKS. Generally speaking, people have gasoline in their gas tanks. The personal privacy implications associated with searching gas tanks are minimal.

It is a MASSIVE logical leap to go from the idea that a search of a gas tank is OK to the idea that any search of any collection of personal records no matter now how invasive must also be OK. For this huge logical step to be taken with so little consideration - hardly a mention in a footnote and only because the dissent prompted it - well, these are obviously people who are rationalizing their way to a desired result rather than objectively and thoroughly considering the serious issues that they herein decide.

Shameful.

I want to add that the sort of thinking here - that "If we've etablished that its OK to search a gas tank than we must also agree that its OK to search a laptop." - is exactly the sort of logical progression that George Orwell wrote about in Animal Farm.

Appeals Court Strengthens Warrantless Searches at Border | Threat Level | Wired.com

MemeStreams had social search in 2001. Just saying...

YouTube - Introducing the +1 Button