Constitution Daily

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Constitution Check: How much privacy do email messages have?

December 6, 2012 by Lyle Denniston


Lyle Denniston explains the constitutional issues about the desire of law enforcement officers to read your email—and a recent Senate committee decision that may make that act tougher to do.

The statements at issue:

“When the FBI pored through the personal lives of CIA Director David Petraeus, Paula Broadwell, Jill Kelly [sic] and General John Allen, citizens across the country began to wonder how the FBI could get that kind of information. ...”

“Yesterday was a watershed moment in the fight for electronic privacy. The Senate Judiciary Committee overwhelmingly passed an amendment that mandates the government get a probable cause warrant before reading our e-mails. The battle isn’t over.”

“We’re creating a movement of engaged Internet users and rallying them to demand the government stay out of our e-mail.”

– Entries on November 29 and 30 on the website of the Electronic Frontier Foundation, a private advocacy organization that uses lawsuits and other techniques to advance its cause of pursuing free speech, privacy, and other issues in the digital world.

We checked the Constitution, and…

The Fourth Amendment is the place in the Constitution where Americans will find a shield for their privacy, but it is sometimes a porous shield. Put into the basic document in 1791 as part of the Bill of Rights, the guarantee against “unreasonable searches and seizures” has not always kept up with advances in the technology of law enforcement, or just plain snooping.

At the Supreme Court, where the amendment’s scope is often at issue, the justices in recent years have chosen to proceed with caution as they encounter new pleas for privacy protection in the Digital Age. Some of the members of the court have said that a measured pace is in order, because technology is changing very rapidly, and a rush to define constitutional rules would soon be overtaken by new devices that had not been anticipated.

The FBI and other law enforcement agencies, however, have been quick to use new technology. They have tended to read expansively any court decision that leaves some doubt or uncertainty about whether the Fourth Amendment shield applies, and how far it goes.

Part of the reason that federal agents and police believe they are staying within the Fourth Amendment, even when they use some new investigative device, is that the Fourth Amendment only prohibits “unreasonable” intrusions, and what that means can be in the eye of the beholder.

Another reason is that it is generally not an invasion of someone’s privacy to look into an activity about which an individual cannot be said to “reasonably” expect that it would remain private.

But it is very hard to argue that, when one sends an email, and it contains personal and perhaps romantic or even illicit content, that the sender expected to share it with anyone but the recipient. Surely General Petraeus and Ms. Broadwell, or General Allen and Ms. Kelley, did not think their exchanges would be the stuff of a criminal investigation by the FBI.

What was going on in those instances, it appears, was that the FBI was relying on court decisions that concluded that, when one puts something on an electronic device that uses a telecommunications facility, one does not have an “expectation of privacy.” If the service provider is the medium, according to the law enforcement theory, the content is open for the police to examine, too.

About Constitution Check

  • In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about its meaning and what duties it imposes or rights it protects.

The Supreme Court, so far as it has attempted to analyze the Fourth Amendment in the world of digital expression, has been concentrating on two lines of constitutional thought. One has focused on the electronic privacy rights of government employees, and the other on similar rights for those targeted by a criminal investigation.

For public workers, the court has said that, if a device was provided by the workers’ agency or superiors, even private and very personal messages conveyed on the device are not protected by a privacy shield. But it has yet to have a case on email privacy, when a public employee--or, for that matter, a private citizen--is using a personally owned device for private exchanges, and the police monitor its messages.

For targets of criminal investigations, the court has said that there has to be a balancing between the need to gather evidence of crime, and the personal privacy of the targeted individual. The court has intimated, without saying so explicitly, that police who make an arrest can check out the contents of a personal data device that was in the suspect’s possession, at least when they have some reason to believe it contains criminal evidence.

But, on the other hand, it has said that installing a GPS device on a private auto to track the driver’s movements may be enough of an intrusion to require a search warrant.

And it has said that, if police technology used outside a house tells the officers too much about what is going on inside, the balance probably has to be struck in favor of privacy of the home.

In the investigation of the alleged Petraeus scandal, the FBI appeared to have been persuaded that there was enough of a risk to national security--because Petraeus was the director of the Central Intelligence Agency--that he and those with whom he shared email exchanges could not enjoy an expectation of privacy that outweighed national security fears. In the field of state secrets, balancing often comes out on the government’s side.

The Senate Judiciary Committee’s approval last week of a requirement that law enforcement officers get a “probable cause warrant” before investigating email content was, in fact, the result of citizen engagement on the issue. As the Electronic Frontier Foundation said after that action, “we were able to begin the process of overhauling our archaic privacy laws into alignment with modern technology.”

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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