I blogged yesterday about a new opinion on e-mail and the Fourth Amendment. I received a few requests for a copy of the opinion, so I formatted a version of it and have posted it here.
In the course of re-reading the opinion to post it, I recognized that I was misreading a key part of the opinion. As I read it now, Judge Mosman does not conclude that e-mails are not protected by the Fourth Amendment. Rather, he assumes for the sake of argument that the e-mails are protected (see bottom of page 12), but then concludes that the third party context negates an argument for Fourth Amendment notice to the subscribers. I missed this because the reasoning closely resembles the argument for saying that the Fourth Amendment doesn’t apply at all, and I didn’t read the earlier section closely enough. That’s obviously a much narrower position, and I apologize for misunderstanding it the first time in the quick skim I gave it. Sorry about that: The fault is entirely mine.
ChrisTS says:
No problem. The flood of relief is rather nice.
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October 29, 2009, 5:15 pmEH says:
Legally it may be a narrower position, but practically it’s a fact that very few people run their own mailservers. J. Edgar is still smiling.
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October 29, 2009, 5:50 pmNew Pseudonym says:
Orin, your post shows that you are a scholar (which is obvious) and a gentleman (which may not be).
Pursuant to previous threads and possible forthcoming regulatory action, I have received nothing of value from anyone associated with this blog for this post that would lead to my gratuitous brown nosing in this matter.
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October 29, 2009, 6:24 pmGabriel McCall says:
In that case, the bank safe-deposit box analogy comes fully into play. Would anyone argue that warrants and notice for the bank but not the customer would be sufficient to search a box?
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October 29, 2009, 7:14 pmzippypinhead says:
Ah, now I feel better. Seeing the opinion, the original post makes a lot more sense than it did at first. My biggest beef with the opinion is that it took the Judge entirely too long — 15 pages — to reach the correct conclusion. Perhaps over-analysis is a disease endemic to the review of computer warrants in 9th Circuit-located courtrooms in general?
The issue presented in this case is actually pretty simple: When seizing property in the possession of a third party pursuant to warrant, does Fed. R. Crim. P. 41(f)(1)(C) require that a copy of the warrant and receipt be provided to the “owner” of the property after the seizure is completed, in addition to the person from whose premises the property was seized? And does the result differ when the seized property in the possession of the third party is a stored electronic communication rather than physical property, such as a third party’s papers?
The answer is the same in the cyber-world as it is in the physical world: No. ECPA/SCA muddies up the water only slightly — in that the statute provides a set of procedural and privacy protections for the e-mail subscriber that arguably go beyond the bare requirements of the Fourth Amendment, but that substantively don’t alter the warrant requirement. In short, if there’s no Constitutional requirement to provide a copy of the warrant and a receipt to the “owner” of kiddie porn magazines seized from the FedEx warehouse, there’s also no requirement to provide a warrant/receipt to the “owner” of a stored electronic communication that happens to consist of the exact same contraband in digital form in an ISP’s server. And since determining ownership, custody, etc. of the seized contraband is often a difficult contested issue in both the cyber– and physical worlds, effective “notice” to a person often identified only by an anonymous pseudonym e-mail handle would be more than a little problemmatic.
Although the one thing that sort of bothers me is seeing a certain self-described “bald academic” who ought to know better inaccuractely describe the legal issue as “notice” to the subscriber. No, it’s whether the 41(f)(1)(C) warrant/receipt is required to be provided to the subscriber/owner after the seizure, not whether there’s a “notice” requirement. ECPA/SCA does have various “notice” provisions (e.g., prior or delayed notice required if issuing a subpoena for content), but as the Judge pointed out deep within the bowels of his opinion, that’s not what’s going on here.
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October 29, 2009, 7:41 pmKarasma Media by Kara Smith » Blog Archive » 7 Sites that will keep Legal Marketers on their toes and up to speed with social media marketing rules says:
[...] opinion the next day, Kerr realized he made an error, and published an update on his blog The Volokh Conspiracy. Judge Mosman does not conclude that e-mails are not protected by the Fourth Amendment. Rather, he [...]
IANALBUTIMANAL says:
Non-lawyer here. By way of your analogy with FedEx, does this law then enable the government to search a suspect’s letters while in possession of the US Postal Service, without providing the suspect with the warrant after the search?
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October 30, 2009, 7:11 pmOutsourcing: The Legal Implications « Pat’s Daily Grind says:
[...] Outsourcing: The Legal Implications November 2, 2009 padraic2112 Leave a comment Go to comments Overheard on die.net’s jabber server: “It basically says that since Gmail et al are in “possession” of your e-mail, a warrant only needs to be served on them, and it can include a provision that they aren’t allowed to notify the owner.” (‘it’ being this decision, blogged about here and here) [...]
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