Show me the warrant: protection of stored electronic communications in New York State.

• Author: Klamann, Kaitlin G.

Introduction I. Background A. What Is Eavesdropping? B. What Are "Stored Electronic Communications"? C. The Federal Framework 1. The Wiretap Act 2. The Stored Communications Act D. New York's Framework 1. Obtaining an Eavesdropping Warrant in New York 2. Obtaining a Search Warrant Under New York Law. II. The Conflict A. The Statute's Plain Language B. The Courts' Interpretation III. New York Law Should Require an Eavesdropping Warrant for Law Enforcement's Access to All Stored Electronic Communications A. Law Enforcement Access to Stored Communications in New York Should Not Require an Eavesdropping Warrant 1. The Threat Posed to Individual Privacy Rights Is Not as Great for Stored Electronic Communications as it Is for in-Transit Electronic Communications 2. Requiring an Eavesdropping Warrant for Access to Stored Electronic Communications Would Overburden Law Enforcement Officials B. New York Should Enact a Warrant Requirement for Stored Electronic Communications 1. Reasonable Expectation of Privacy in Electronic Communications a. The Third-Party Doctrine Should Not Defeat Fourth Amendment Protection of Stored Electronic Communications b. Society Has an Objectively Reasonable Expectation of Privacy in Stored Electronic Communications 2. Requiring a Search Warrant Will Not Over Burden Law Enforcement Officials 3. Requiring a Search Warrant for Access to Stored Electronic Communications Would Eliminate Confusion Over the Distinctions Contained in the SC A and Pressure Congress to Take Action IV. The Proposed Revision A. Changes to the Language of New York Penal Law Section 250.00 and New York Criminal Procedure Law Section 700.05 B. Proposed Statute Requiring a Search Warrant for Law Enforcement Access to Stored Electronic Communications Conclusion INTRODUCTION

In June 2013, Americans were stunned to discover that the government was spying on their Internet activities. (1) Edward Snowden, a former National Security Administration (NSA) contractor, (2) initially revealed to The Guardian, a national British daily newspaper, that the NSA was using a program called Prism to gain access to Americans' emails and online data through their Internet service providers (ISPs). (3) Specifically, the NSA was using this program to tap into the central servers of several leading U.S. Internet companies, extracting private audio and video chats, photographs, e-mails and other documents stored online. (4)

While the Foreign Intelligence Surveillance Act (FISA), (5) which allows the NSA to conduct surveillance on matters of foreign intelligence, (6) is the statute at the heart of the scandal, the debate that the scandal has generated about government surveillance also draws attention to problems in our domestic surveillance laws. Our domestic surveillance laws, which exist both on the federal and state level, provide for government surveillance of American citizens by law enforcement officials. The current legal framework, enacted on the federal level and copied in many states, is significantly outdated and therefore woefully inadequate to protect Americans' privacy in modern communications like email and text messaging.

Specifically, the current federal statute, the Electronic Communications Privacy Act (ECPA) (7) was enacted in 1986, when the Internet was still in its infancy. (8) As a result, protection of stored email and text messages is so weak today that government officials are often able to access thousands of these private communications without a showing of probable cause. (9) This weakness is true on the federal level and in many states. This Note focuses on New York's surveillance framework, which tracks the ECPA, pointing out weaknesses in New York's framework with respect to government access to stored electronic communications like text-messages and emails.

Given the growing prevalence of and reliance upon these modes of communication, government access to these messages upon such a low showing is troubling to say the least. In fact, today many Americans prefer to communicate via email or text message over other communication mediums. Specifically, one recent study found that young adults connect just as often through electronic communications as they do in-person. (10) Similarly, in 2011 thirty-one percent of text message users stated that they preferred texting to speaking on the phone. (11) The irony of these statistics is that Americans' in-person conversations or telephone conversations are much more protected from government intrusion than electronic communications. (12) Even though Americans are beginning to use electronic modes of communication more often and to convey the same information as they have traditionally conveyed in-person or via telephone, those electronic messages are more vulnerable to government surveillance.

At this point, many readers might respond, "So what? If the government has to read my emails or texts in order to prevent acts of violence or terrorism, that's ok with me. I have nothing to hide. I will gladly surrender my privacy if it means that Americans are safe." These readers are not wrong. It is about balance. It is about determining when the government can violate an individual's privacy rights in order to prevent and investigate crime. The current legal framework fails to strike the right balance. The following examples will demonstrate the dangers posed by the law's weaknesses. (13)

Joe Smith is an upstanding citizen and pillar of his community. He is married to a well-respected woman and is a father to three children. Unfortunately, Joe's brother, Dave, has gotten mixed up in organized crime. Dave had agreed to be a witness for the prosecution in an upcoming trial against a mob boss but has since disappeared. The prosecution is desperate to find him. Convinced that he ran away and that his brother is sure to have knowledge of his whereabouts, the government gets a court order to search Joe's emails and text messages. The messages do not reveal any information about Dave's location but they do reveal a series of explicit exchanges between Joe and several women. Still convinced that Joe knows the location of a vital witness, the prosecution approaches him with their new information, threatening to expose the affair if Joe does not cooperate with the prosecution.

Additionally, consider Amy Miller. Amy is a single woman in her late twenties living in a small town. Amy is schizophrenic. She has been on medication for years without an episode and prefers that her community not know of her condition. The head of the company where Amy works is suspected of embezzlement. Investigators, for one reason or another, believe that Amy may have had knowledge of her boss's actions or even know what he did with the money. So local law enforcement officials, many of whom Amy knows and considers friends, get a court order for her emails and texts. The messages reveal that Amy has schizophrenia, and soon the whole town knows about her mental illness.

One final example (14) is Michael Williams. Michael is a young married man with a promising future. Michael is also Muslim-American. State police and the FBI have been conducting surveillance of Muslim individuals in his community ever since September 11, 2001. Their primary source of information is informants stationed within the Muslim communities. Investigators obtain a court order or subpoena to access Michael's emails and texts. They discover a number of pornographic messages and images exchanged between Michael and his wife before their marriage. If exposed, these actions would destroy Michael's reputation in the Muslim community. Investigators then use this information to force Michael to inform on the Muslim community.

In each of these hypothetical examples, government officials did not have to demonstrate probable cause to obtain the users' private electronic correspondence. Joe's emails and texts were searched without a showing that law enforcement had probable cause to believe that Joe had any knowledge of his brother's whereabouts. Amy's messages were turned over despite the fact that law enforcement could not demonstrate probable cause that she had any knowledge of her boss's actions. And finally, Michael's messages were searched without any showing at all that his private information was related to an existing criminal investigation other than his status as a Muslim. Moreover, while law enforcement's use of these messages to force cooperation may verge on prosecutorial misconduct, the intrusion itself--the reading of the private information--is where the harm begins. These hypothetical examples highlight the fact that many Americans today communicate very private information via email and text message. Thus, government access to these private communications, even without any misuse of the information, is wrong. The intrusion upon individual privacy rights represented by government access to these communications has grown as society's reliance upon electronic communication has increased.

So what can be done to protect electronic communications? There seem to be two options: (1) the states can wait for guidance from the federal government via Congress or the courts, and in the meantime continue to allow the search of citizens' stored electronic messages without a warrant; or (2) the state legislatures can take action. Given that Congress has failed to enact an amendment to the ECPA despite the fact that an amendment has been proposed in each of the last three Congressional sessions, (15) the first option could leave Americans' privacy rights unprotected for a long time. Similarly, the Supreme Court has failed to provide guidance1 (16) and the lower courts are churning out conflicting opinions that rely on outdated distinctions. (17) The second option, on the other hand, would offer Americans protections by their states, (18) and may also pressure Congress to take action on the federal level. States can take action by...