In a decision this month, Mosman ruled that the Fourth Amendment — protection from unreasonable search and seizures — does not guard us from this kind of search. Given that I often exchange e-mails with sources who would prefer to stay anonymous, this ruling alarms me. Though hopefully my writing would never expose me to a criminal investigation. Legal blogs are buzzing about the ruling. (See the Volokh Conspiracy and the Wall Street Journal Law Blog.)
The problem with this is that you would never even know that the search happened. It would all take place without any notification to prevent you from deleting e-mails or refraining from continuing your illegal activity. In explaining his ruling, Mosman writes that the Fourth Amendment protects our homes from unreasonable searches and seizures, but that when we use the Internet, our actions are no longer in our homes and we are no longer “acting in private space at all.”
Mosman isn’t even some old, antiquated, “I-don’t-understand-the-Internetz” dude. Born in 1956, he’s a former U.S. Attorney of Oregon, who was appointed to the bench by George Bush in 2003. Here’s his bio and photo.
Mosman reasons that when we send e-mails and instant messages, they travel from computer to computer and are “held” along the way by third parties: ISP providers. Thus, the police can serve the ISP providers with a search warrant and get the information turned over without notifying an e-mail account holder. Mosman explains in his decision posted by the WSJ Law Blog
Much of the reluctance to apply traditional notions of third party disclosure to the e-mail context seems to stem from a fundamental misunderstanding of the lack of privacy we all have in our e-mails. Some people seem to think that they are as private as letters, phone calls, or journal entries. The blunt fact is, they are not.
But aren’t ISPs acting like the Postal Service here? We also put our written communication into the hands of postal workers, but we don’t see that as invalidating its private nature. Just because mail is electronic shouldn’t change its right to privacy. And with email, there’s a far greater mass of content to be seized. Whereas police might seize one package from FedEx — an example cited by Mosman — we send out tons of emails each day.
Mosman argues that the electronic communications are “stored” by the third party ISPs, and that material can be seized from third parties without notifying the first party sender and second party receiver. I think this is a rather unfortunate ruling.
PDFs of actual ruling available: