From the President: Is Mail Still Mail? And Will the Fourth Amendment Survive the 21st Century?

Is Mail Still Mail? And Will the Fourth Amendment Survive the 21st Century? Jim E. Lavine President's Column January/February 2011 5 As communication technology outpaces the legal analyses of a bygone era, courts around the country must confront vitally important 21st century search and seizur

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As communication technology outpaces the legal analyses of a bygone era, courts around the country must confront vitally important 21st century search and seizure issues. Nothing less is at stake than the vitality of the Fourth Amendment and our right to privacy. Confusion and inconsistency reign as courts struggle to apply amorphous search and seizure law to new realities. For example, there is now arguably a federal circuit split concerning warrantless GPS surveillance. And some states, like New York, have found warrantless GPS surveillance to violate their own constitutions. Warrantless cell phone searches incident to arrest have been found by Ohio’s Supreme Court to be a violation, while California’s Supreme Court reached the opposite conclusion. Eventually, the Supreme Court will clarify the law. 

At issue is how we live in the age of instant communication, and whether we can reconcile privacy with progress. Is warrantless tracking and storing of our every move – for weeks on end, 24 hours a day, on a computer screen via a secretly implanted GPS on our cars – really nothing more than the equivalent of an investigator following us? Are our cell phones, with all of their private data, nothing more than containers that can be searched on arrest without a judge’s approval? How about our mail? Are our rights in the mail we send on the Internet any less protected than those in the mail we send via the U.S. Postal Service? 

As “Liberty’s Last Champion,” NACDL members fight in the legislatures, courtrooms, and public squares of America every day to protect our rights, including those provided in the Fourth Amendment. The touchstone of these efforts must flow from the determination of the founders to keep the government from snooping in the “persons, houses, papers, and effects” of the people. We must ensure that this vision survives the invention of the cell phone and the laptop, just as another generation did with the telephone. 

A recent case illustrates how courts are beginning to address these sensitive issues. In United States v. Warshak, the government, without a warrant, compelled defendant’s Internet service provider (ISP) to reveal the contents of thousands of private emails in a case concerning conspiracy, fraud, and money laundering by an herbal supplement distributor. 

In this case, which garnered surprisingly little attention from the press, the Sixth Circuit found that government agents violated the defendant’s Fourth Amendment rights when, citing the outdated Stored Communications Act of 1986 (SCA), they seized his stored email without a warrant. “[An Internet] subscriber enjoys a reasonable expectation of privacy in the contents of emails that are stored with, or sent or received through, a commercial ISP,” the court said. “Moreover, to the extent that the SCA purports to permit the government to obtain such emails warrantlessly, the SCA is unconstitutional.” 

The court got it exactly right. How many email communications did we send and receive today? How many via snail mail? The SCA, the authority cited by the government in Warshak, was enacted in 1986, a time when personal computing was just taking off, and several years before the launch of the World Wide Web. What the Sixth Circuit accomplished here was a common sense application of a constitutional amendment ratified some 220 years ago. People have a right to the same privacy in their email as they do in their letters and their post office boxes. The police cannot storm the post office and seize our mail, and they cannot intercept our phone calls or voicemail messages without a warrant. This important opinion recognizes that the same Fourth Amendment protection applies to email.1 

The people of this country reasonably expect and deserve protection from law enforcement agents who would snoop into their private communications without probable cause and a court order. But will the Warshak decision stand? At stake in the coming months and years is whether the Fourth Amendment can survive the 21st century. And, of course, none of this will mean anything if courts continue to find exceptions, as the Sixth Circuit did in reaching this holding but declining to apply the remedy of the exclusionary rule in the case before it. In the meantime, we should remain vigilant as defenders of the Constitution and continue to urge its enforcement. 


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1. High praise is due the defense team, NACDL Past President Martin Pinales, former NACDL Board Member Martin Weinberg, and Robert Goldstein. These three defenders are like a Fourth Amendment dream team. They understand that the Constitution and the Bill of Rights still reign as the supreme law of the land.



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