Come Back With A Warrant

If the Federal government wants to compel an on-line service provider, like Yahoo or Google, to turn over your e-mail, they need a warrant. That's the industry-accepted best practice, implemented by nearly every major service provider. More importantly, it's what the Fourth Amendment requires.

However, there are a couple exceptions to the warrant requirement, where only a subpoena is required for the government to access your private e-mail. The first is e-mail that you have opened (and presumably read) that is stored on a remote system (i.e. in your Yahoo or Gmail account). The second is when an e-mail remains unopened on a remote system for more than 180 days. 

A subpoena is an order that requires an eyewitness or a material witness to appear in a specific place, such as an attorney’s office or in court, on a specific date and time to provide sworn testimony about what the person saw, heard or knows -- or to provide relevant documents. Using an "Administrative Subpoena", requiring little more than a federal official's signature; banks, hospitals, bookstores, telecommunications companies and even utilities and internet service providers - virtually all businesses - are required to hand over sensitive data on individuals or corporations, as long as a government agent declares the information is relevant to an investigation. Via a wide range of laws, Congress has authorized the government to bypass the Fourth Amendment - the constitutional guard against unreasonable searches and seizures that requires a probable-cause warrant signed by a judge.

A warrant is a court order that authorizes law enforcement personnel to search or seize property or arrest a person suspected of committing a crime. The U.S. Constitution requires a warrant to protect an accused person’s Fourth Amendment rights. Unlike with a subpoena, a judge must always issue a warrant -- and only if the request meets the "probable cause" standard. Probable cause requires some type of evidence, not just a suspicion of a crime.

Data seizure laws are far more complex than can be described in the couple of paragraphs above, but there are some things that we should be aware of with regard to data privacy. E-mail in transit, and e-mail stored on a remote system for 180 days or less, as long as the e-mail hasn't been opened, requires a warrant to obtain its content. E-mail that you have downloaded and store on your home computer also requires as warrant if the government wants to come into your home and seize those e-mails.

Where we lose our legal protections is after we open and read an e-mail and then leave that e-mail on a remote system, or if we leave an unopened e-mail on a remote system for more than 180 days. In these cases a government official need only declare that your e-mail contains "information that is relevant to an investigation", and your e-mail service provider is compelled by subpoena to hand your private messages to the government.

To help protect your e-mail against warrantless search and seizure:

• Never leave any e-mail on a remote system for more than 180 days.
• Once you have opened an e-mail, delete it from the remote system. Never leave opened e-mail stored on-line.
• Use an encrypted e-mail service. Strong encryption will help protect the content of your e-mail. (ProtonMail or Tutanota)
• Use an e-mail service in a country other than where you reside. (A US subpoena will have little effect on a Russian e-mail service provider.)

Ultimately, our constitutional rights shouldn't be diminished just because the Federal government wants to conduct its investigations without meeting the requirements necessary to obtain a warrant.

The Email Privacy Act is simple: it requires the government to get a probable cause warrant from a judge before obtaining private communications and documents stored online with companies such as Google, Facebook, and Dropbox - regardless of how long they have been stored.

The House’s unanimous vote on the Email Privacy Act last year demonstrated bipartisan agreement that the e-mails in your inbox should have the same privacy protections as the papers in your desk drawer. Urge the Senate to swiftly pass the H.R. 387 to protect on-line content with a probable cause warrant.