Warrantless Searches of Electronic Communication

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Recent news about federal executive agencies obtaining information on private citizens without warrants has many Americans concerned about an erosion of civil liberties. Both the Internal Revenue Service (IRS) and the National Security Administration (NSA) have been accused of collecting information about Americans without obtaining warrants. In response, last month, the IRS issued a policy statement clarifying that it would no longer read taxpayer emails without first obtaining warrants. An open question, however, is whether the NSA will take similar steps to protect Americans’ privacy rights in light of recent leaks about its practices.

The IRS issued Policy Statement 4-120 on May 3, 2013, asserting that the agency will follow the holding in U.S. v. Warshak, 631 F.3d 266 (6th Cir. 2010) and obtain a search warrant in all cases when seeking stored email content from an internet service provider (ISP).

In Warshak, Steven Warshak challenged his convictions stemming from an elaborate scheme to defraud customers. He argued that the government’s warrantless ex parte seizure of approximately 27,000 personal emails was a violation of the Fourth Amendment’s prohibition on unreasonable searches and seizures. The court held that Warshak had a reasonable expectation of privacy in his emails through his ISP. Therefore, when government agents compelled the ISP to turn over emails without first obtaining a warrant, the agents violated Warshak’s Fourth Amendment rights.  This is the rule in the Sixth Circuit, but the law is developing. 

Warshak may also indicate that there is a reasonable expectation of privacy in phone communication data through one’s phone service provider. The recent publication of the  secret  U.S. Foreign Intelligence Surveillance Court order requiring Verizon to supply the NSA “all ‘telephony metadata’ created by Verizon”  regarding local calls and calls between the U.S. and abroad has set off an impassioned discussion about the constitutionality of such practices. The NSA surveillance frames the issue slightly differently than the IRS’ grab of emails: Do individuals have reasonable expectations of privacy in their phone metadata records? As the court stated in Warshak, “the Fourth Amendment must keep pace with the inexorable march of technological progress, or its guarantees will wither and perish.” 631 F.3d at 285 (citations omitted).