Is America on the cusp of the next evolution in legal thinking regarding technology and the Constitution?

Decades ago, telecommunications inventions forced courts to grapple with the effects of technology on Constitutional doctrine, resulting in much of the precedent that law students currently learn in their criminal procedure and constitutional law classes.

Today, circuit courts across the country are once again wrestling with how the Constitution and Bill of Rights apply to newer technologies like cell phones and the internet.

Three cases from 2010 exemplify a possible doctrinal evolution amongst the federal courts, especially with regard to the Fourth Amendment’s warrant requirement.  And perhaps the most seismic of these three is United States v. Warshak, the first appellate case to tackle the Fourth Amendment’s warrant requirement as it applies to email.

In Warshak, the Sixth Circuit (which covers Kentucky, Michigan, Ohio and Tennessee) entertained an appeal from a distributor of penile enhancement herbal supplements who was sentenced to 25 years in federal prison for numerous acts of fraud.  Warshak argued that his conviction was improper on account of the government acquiring his emails from his internet service provider (“ISP”) without a warrant.  The government had relied on a section of the Stored Communication Act which authorizes the seizure of emails from an ISP without a warrant when those emails are stored on an ISP server for more than 180 days.

The Sixth Circuit first explained hornbook law on searches and seizure.  Under the Fourth Amendment, the government engages in a “search” when it infringes upon an “expectation of privacy that society is prepared to consider reasonable.”  Warshak plainly expected his emails to be private; the deeper question was whether society was prepared to recognize that expectation as reasonable.  “This question is one of grave import and enduring consequence, given the prominent role that email has assumed in modern communication,” the Court noted.  (Warshak decision at 17).

And the answer?  After reviewing key Fourth Amendment decisions related to telephone communications and letters, the Sixth Circuit held that email “requires strong protection under the Fourth Amendment” on account of its modern indispensability — “so pervasive that some persons may consider it to be an essential means or necessary instrument for self-expression, even self-identification.”  (Warshak decision at 20.)

If an email is like a phone call or a letter, then it is “manifest that agents of the government cannot compel a commercial ISP to turn over the contents of an email without triggering the Fourth Amendment.”   Id.  Because the government did not get a warrant before it obtained Warshak’s emails, it “violated the Fourth Amendment.”  Id.

The Court didn’t stop there.  Noting that the government had relied on good faith on portions of the Stored Communications Act which permitted seizure of emails without a warrant, the Court held that any such sections were simply unconstitutional.  Id.

How about getting cell phone data stored by cell phone companies?  The Third Circuit (which covers Delaware, New Jersey and Pennsylvania) addressed this issue on appeal in September 2010 when the government requested a private citizen’s cell phone location information under a “reasonable grounds” basis — lower than the “probable cause” standard required for a warrant.  Like Warshak, the statute at issue was the Stored Communications Act.

The lower court unanimously held that the government needed a warrant in order to obtain cell phone location information, since warrants are required to install tracking devices on individuals.  Tracking information from cell phones, the lower court reasoned, was a “tracking device” for purposes of federal law.  (Third Circuit decision at 9-10.)

On review, the Third Circuit rejected this interpretation.  It held that Constitutional privacy interests are implicated only in the “interior of the home.”  There was nothing in the record that cell phone location information extended to that realm, and thus a lower standard was appropriate.  (Third Circuit decision at 17.)

However, the Court also wrote that the government did not have full reign to request cell phone location information without judicial oversight.  Reading the language of the statute, the Third Circuit held that in some instances, a court mayrequire a warrant if privacy interests are implicated.  And the Court rejected the government’s argument that it never needed a warrant, labeling this position “extreme” and reminding the government that it was not free from the warrant requirement merely because it was investigating criminal activity.  (Third Circuit decision at 26-27.)

Finally, in United States v. Boroway, the Ninth Circuit (which covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington) examined the scope of the Fourth Amendment as it applied to file-sharing services — in this case, the once ubiquitous LimeWire peer-to-peer program.  In Boroway, an FBI agent logged onto Limewire and did a search for the term “Lolitaguy.”  The search produced Boroway’s files.  After downloading the files and confirming the presence of child pornography, the agent requested a search warrant and confiscated Boroway’s computers and data.

On appeal, Boroway argued that the evidence obtained through the searches should be thrown out because he had attempted to shield the contents of the LimeWire directory through a special software modification, thus evincing his desire to keep the files private.  The Court rejected this argument, largely relying on a 2008 decision that held that people who put files on a file-sharing program do not have a reasonable expectation of privacy related to those files.  (Boroway decision at 4.)  Boroway was “clearly aware that LimeWire was a file-sharing program that would allow the public at large to access files in his shared folder . . . Because Boroway lacked a reasonable expectation of privacy in the shared files, Agent Mitchell’s use of a keyword search to locate these files did not violate the Fourth Amendment.”

2010 proved to be an important year for the Fourth Amendment and 2011 will likely bring more of the same — as well as possible Supreme Court review.

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