Journal of Information & Privacy Law

How Much Privacy do We Have in Our Inboxes? Government Access without Warrants

By Dana T. Benedetti, Candidacy Editor on Sunday, December 15th, 2013
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Curious to know how much privacy you really have in your stored personal emails? You would think that the government would need a search warrant in order to search through those emails, right? Well, not quite. As of today, there are loopholes in the system that may allow for your inbox to be searched without a search warrant. Seems like a Fourth Amendment privacy violation, right? Sure does. What has been done about it in recent years? Not a whole lot.

The last time that this issue was addressed was back in 2010 in the 6th Circuit Court of Appeals in the case of United States v. Warshak, 631 F.3d 266 (6th Cir. 2010).  Keep in mind, the United States Supreme Court has yet to address this pressing issue. In this case, the court found that it was unconstitutional for the government to search through one’s stored emails without a search warrant. However, in that case, even though the court held it was unconstitutional, the victim of the search was nonetheless convicted based on the emails that were acquired without the search warrant.

So what are these loopholes that allow for some of your stored emails to be searched without a warrant? They stem from particular outdated sections within Title II of the Electronic Communications Privacy Act (“ECPA”): the Stored Communications Act (“SCA”), specifically Sections 2703 and 2705. The SCA was passed by Congress in the late 80’s, for the purpose of granting more privacy protections to electronic communications, like email. However, these provisions of the Act were drafted before the Internet and email even existed! So how could the drafters of this Act anticipate the intricacies of the Internet and email? Well, they really couldn’t, which is the basis of our problem.

Let’s say you have an email account with Yahoo!, and the government is suspicious of some of the emails you have sent and received. As the law currently stands, the government need only have a subpoena or court order (a standard far less than that of probable cause needed for a search warrant) to ask Yahoo! for those emails stored for more than 180 days. For those emails stored less than 180 days, the government needs to have a search warrant. But, that’s not all they can do. They can request and search through these emails in some accounts without ever notifying you for ninety days – a period of time that can be continuously and unlimitedly extended.

180 days? What is so magical about that number? Why should your emails be awarded less privacy for being stored in your inbox a whole whopping one day more? Well, they shouldn’t. But because of the outdated nature of the SCA and lack of Supreme Court precedent, there is really nothing any of us can do about it.

What do we really need? We need Congress to acknowledge that their once admirable attempts of extending privacy to electronic communications is now outdated – nearly thirty years outdated. Congress needs to step up and realize that the current laws protecting electronic privacy are insufficient. Until they do, we are left with uncertainty as to how much privacy one really has in their stored emails.

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