The Government Cannot Force E-mail Companies to Copy and Save Your Account ‘Just in Case’
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The Government Cannot Force E-mail Companies to Copy and Save Your Account ‘Just in Case’
Police are issuing warrantless preservation demands to force email providers to seize users’ private communications.
Paper letters have a final resting stop — whomever they are addressed to. From a practical standpoint, and a legal one, that feature of regular mail made understanding and applying privacy protections relatively straightforward. But as our communication technologies have changed, courts have struggled to grant a similar degree of privacy protection to communications in the modern era.
Digital communications present new problems. For example, your email does not live in your letterbox but in an online repository operated by a private company. And as digital communications like email and social media become more ubiquitous in society, investigators increasingly rely on them as important sources of evidence.
Making sure that email gets proper Fourth Amendment protection is one of the ACLU’s priorities. So on Tuesday, we filed a friend-of-the-court brief in the Ninth Circuit Court of Appeals that calls attention to a little-known statute that appears to be giving law enforcement an unconstitutional loophole to exploit in its pursuit of digital evidence. The case involves the warrantless use of law enforcement preservation demands to force email providers to copy and keep an individual’s private communications for up to half a year — without ever asking a judge or meeting a standard of suspicion.
The Fourth Amendment protects our rights in our belongings from arbitrary police power. Before law enforcement can seize our “papers” and “effects,” it must obtain a warrant from a neutral magistrate. In this case, law enforcement unilaterally issued a preservation demand and then took nine months to follow up with a warrant seeking the preserved emails. This prolonged, warrantless seizure is typical of a growing nationwide practice: one where investigators regularly issue secret demands to preserve individuals’ private account data just in case they decide to return with a court order later…continue reading
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