Search warrants and web-based e-mail accounts

Of all the constitutional guarantees, one most Americans are familiar with is the Fourth Amendment. In its entirety, it states, “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.” But that protection may not fully apply to Web-based e-mail, a federal judge in Oregon has ruled.

The case involved a Gmail and another web-based email account and whether the government can simply issue a search warrant to the internet service provider without notifying the e-mail account users. U.S. District Judge Michael Mosman said the Fourth Amendment provides protection “for homes and the items within them in the physical world.” But when a person is using a web-based e-mail provider, “the user’s actions are no longer in his or her physical home; in fact he or she is not truly acting in private space at all,” Mosman wrote. Instead, users voluntarily convey and expose their e-mail to a third party, which becomes the holder of the information. As the holder, it was enough for the government to serve it with the search warrant in the context of the particular case.

That wasn’t the judge’s entire rationale. Mosman pointed out that Gmail’s privacy policy, like those of most internet service providers, says Google can share a user’s personal information if it has a “good faith belief” that disclosure is “reasonably necessary” to satisfy legal process or an enforceable governmental request. That means, according to Mosmon, that Gmail users “are, or should be, aware that their personal information and the contents of their online communications … can be shared with the government under the appropriate circumstances. … Some people seem to think that they are as private as letters, phone calls, or journal entries. The blunt fact is, they are not.”

The potential impact of the ruling could be vast. Look at Google alone. It allows you to store not only e-mail but documents and your personal calendar. Flickr, Facebook and the like all allow online storage of photos. Thus, once again, we confront the interplay of our lives in cyberspace and the real world and whether the former entitled to the same protections.

An additional twist in the case of electronic information is that no property is actually taken or seized as that term is used in the Fourth Amendment context.

In re United States, Nos. 08-9131-MC, 08-9147-MC (D. Ore. 2009)

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