A new effort from Grover Norquist to protect digital privacy and an ongoing court fight over laptops at borders have put the Fourth Amendment back in the national headlines.
On Monday, Norquist, who is best known for the budget and tax efforts, joined the Center for Democracy and Technology and the American Civil Liberties Union to raise awareness about privacy issues related to personal email.
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In an article on Politico cowritten with Laura Murphy of the ACLU, Norquist explains that the rights we expect under the Fourth Amendment don’t apply to some email and other communications stored at Internet Service Providers or on the shared-computing system known as the cloud.
Norquist and Murphy say the Electronic Communications Privacy Act, passed in 1986, gives law enforcement the power to look at all your emails that are 180 days or older, without a subpoena signed by a judge—assuming they are stored on a server somewhere.
“The government can contend ECPA gives it the authority to ignore your privacy to an extent that would have shocked the framers of the Constitution,” they say. “And all we are saying is that the warrant standard established by the Constitution for privacy in the physical world should also protect privacy in the digital world.”
The ECPA doesn’t allow law enforcement to look at emails that are stored on your own computer or are less than 180 days old, without demonstrating probable cause to a judge.
Congress is considering an update to the ECPA; hearings are set for Tuesday. The House Judiciary Committee will hear testimony from Google, law enforcement officials, and academic experts on the subject.
Senate Judiciary Committee Chair Patrick Leahy has also pushed for an overhaul of the ECPA. A revised law made it out of the Leahy’s committee in December, but it didn’t get passed by Congress.
House Judiciary Committee Chair Bob Goodlatte also supports reform measures, which also include how police can access data about where you have used your cellphone.
And on March 8, when the U.S. Court of Appeals for the Ninth Circuit ruled that border agents need to demonstrate “reasonable suspicion” before they can search or impound your laptop or tablet computer at a border stop or airport.
The legal standard of reasonable suspicion is not as strict as probable cause when it comes to a law enforcement official searching your computer records.
Reasonable suspicion occurs when a “reasonable” person suspects that a crime has been committed, based upon specific facts, allowing a brief detention or examination to take place. Probable cause requires a preponderance of evidence presented to a judge for a warrant.
The idea of probable cause is part of the Fourth Amendment:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
The appeals court ruling is important because it says that border officials can’t conduct extensive suspicionless searches of laptops.
In its majority opinion, the court said that the ruling was a “watershed” case and that “reasonableness remains the touchstone for a warrantless search.”
“This type of material implicates the Fourth Amendment's specific guarantee of the people’s right to be secure in their ‘papers’,” said the majority opinion.
The border search issue has been contentious for years, since critics say the government’s unlimited power to search laptops at the border can compromise files containing trade secrets and confidential lawyer-client communications, as well as personal data.
The Supreme Court has recognized several exceptions to the due process requirement of the Fourth Amendment, one of which is the border search exception.
Hanni Fakhoury from the Electronic Frontier Foundation told Politico that he expected the Justice Department and the defendant to bring the case to the Supreme Court.
The Supreme Court has yet to consider a case involving the degree of suspicion needed to search laptops at the border without a warrant or reasonable suspicion.
In another case from 2008, United States v. Arnold, the Ninth Circuit found that reasonable suspicion was not required to support the warrantless laptop border searches.
Scott Bomboy is the editor-in-chief of the National Constitution Center.
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