The warrantless interception of e-mail: Fourth Amendment search or free rein for the police?

• Author: Ray, Ryan A.

INTRODUCTION I. THE PROTECTIONS OF THE FOURTH AMENDMENT A. The Exclusionary Rule B. The Fourth Amendment's Application 1. The Special-Needs Doctrine 2. Diminished Expectations of Privacy C. Kyllo, Technology, and the Fourth Amendment II. FOURTH AMENDMENT PROTECTION OF REGULAR MAIL III. E-MAIL AND THE FOURTH AMENDMENT: THE CURRENT LANDSCAPE A. Fourth Amendment Protection of Electronic Communications B. Case Law Specific to E-mail IV. INTERCEPTION OF E-MAIL AND THE FOURTH AMENDMENT A. What is an Interception? B. Interception of E-mail Addresses C. Interception of E-mail Content V. DETERMINING WHETHER THE WARRANTLESS INTERCEPTION OF E-MAIL IS A FOURTH AMENDMENT SEARCH: A PROPOSED ANALYSIS A. Does the Sender of the E-mail Have a Subjective Expectation of Privacy? B. Is the E-mail Sender's Subjective Expectation of Privacy Objectively Reasonable? CONCLUSION INTRODUCTION

The local police have set up an innovative new sting operation. The police are intercepting the e-mail messages of any person whom they have any hunch may be involved in something illegal. (1) After rummaging through the e-mail of many hundreds of innocent people in the community, the police finally stumble upon evidence of criminal activity in the e-mail of a particular citizen. Based only on the intercepted e-mail messages, the police arrest the citizen, and the prosecutor charges the citizen with several crimes. It is now the day of the all-important suppression hearing. The intercepted e-mail messages are powerfully incriminating evidence, and the only real hope is to have the evidence excluded. The police seized all of the evidence against our citizen by intercepting his email messages without a warrant or any particularized suspicion. Will the e-mail be admitted or suppressed?

The Wiretap Act (2) provides that it is unlawful "to intercept or access an electronic communication made through an electronic communication system that is configured so that such electronic communication is readily accessible to the general public." (3) The Wiretap Act explicitly sets forth an exclusionary rule for wire and oral communications intercepted in violation of the Act's provisions. (4) This would seem, at first pass, to be a winning argument for our citizen to exclude his email from evidence. The Act has, however, been interpreted as having no exclusionary rule for electronic communications intercepted in violation of its terms. (5) Authentication and hearsay issues aside, the prosecutor appears to be able to introduce the e-mail messages--which were intercepted without a warrant--against our citizen, unless the Fourth Amendment's exclusionary rule provides the citizen with some recourse. But does the exclusionary rule apply to police interception of the citizen's e-mail?

The Fourth Amendment's exclusionary rule would only provide such a recourse if the interception was a "search"--in other words, if it interfered with an individual's reasonable expectation of privacy. E-mail has now become a widely accepted method of communicating, if not the predominant one. It seems that most, if not all, e-mail users expect that their e-mail will remain private, at least until the messages reach the intended recipient. So it seems that e-mail users have an expectation of privacy as to the content of their e-mail messages--one that society views as objectively reasonable. With that in mind, the interception of e-mail messages without a warrant should be considered a "search" for purposes of the Fourth Amendment.

Applying a similar rationale, courts have long held that the content of sealed mail is subject to the Fourth Amendment's protections. Indeed, the Fourth Amendment expressly mentions "papers" as one of things that the people have a right to keep free from unreasonable searches. Yet many courts have refused to recognize e-mail users' expectations of privacy. Applying unclear rationales in decisions lacking conceptual clarity, courts have found that e-mail messages may be intercepted without probable cause, without a warrant, under exceptions to the warrant requirement that are not applicable. At the same time, one court recently observed the following:

The extent to which the Fourth Amendment provides protection for the contents of electronic communications in the Internet age is an open question. The recently minted standard of electronic communication via e-mails, text messages, and other means opens a new frontier in Fourth Amendment jurisprudence that has been little explored. (6) But that does not--and should not--mean that this new frontier is barren of reasonable privacy expectations. As Professor Laurence H. Tribe once said, "New technologies should lead us to look more closely at just what values the Constitution seeks to preserve." (7) If the Fourth Amendment seeks to preserve any values at all, protection of the people's papers and effects from unreasonable government intrusion is paramount amongst them.

Part I of this article explores traditional Fourth Amendment doctrine in general. Part II expounds on the Fourth Amendment's application to regular mail--seemingly a conceptual analogue to email. Part III analyzes case law and statutory law relevant to email, and explores the manner in which courts have applied the Fourth Amendment to e-mail. The analysis set forth in Part III concludes that the courts' application of the Fourth Amendment to the e-mail context has, to date, been either deeply flawed or tenuously unclear. Some courts and commentators have concluded that previous case law--not involving e-mail--dictates that there is either a greatly diminished expectation of privacy in e-mail or no expectation of privacy at all. These conclusions are unfounded. While modern technology may now allow law enforcement (and even private citizens--in the form of "hackers") to intercept the email messages of most citizens, the availability of such technology should not lead to the conclusion that e-mail is beyond the ambit of the Fourth Amendment. As Justice Brennan stated when discussing electronic surveillance: "The requirements of the Fourth Amendment are not inflexible, or obtusely unyielding to the legitimate needs of law enforcement." (8) New technology should not lead courts to forsake the fundamental concept that the people's private communications should remain free from unchecked police encroachment.

Part IV of this article considers specific actions that law enforcement likely takes to intercept e-mail and explores the Fourth Amendment implications of those actions. Part V of this article proposes analyzing the intersection of Fourth Amendment doctrines and e-mail through a different lens than through the one others have gazed, proposing a more appropriate application of Fourth Amendment jurisprudence to private e-mail. The analysis proposed in this article identifies three factors that a court should examine. These factors consider the particular e-mail message at issue and analyze the manner in which the user has manifested her expectation of privacy. Using the proposed analysis, this article concludes that the typical e-mail message is protected by the Fourth Amendment. The analytical framework proposed in this article should, at minimum, clarify the protection that the Fourth Amendment provides--or certainly should provide--to e-mail.

There can be no doubt that valuable evidence of criminal activity can be found in e-mail. Certainly law enforcement, and society as a whole, have a legitimate interest in obtaining that evidence. The Fourth Amendment, however, dictates that this legitimate law enforcement interest does not trump the people's right to safeguard their papers, among other things, from unreasonable searches and seizures. In today's world, e-mail messages largely are the people's "papers" as referred to in the Fourth Amendment. The fact that e-mail is conveyed in a different manner than the traditional letter should not ipso facto diminish society's expectation of privacy in e-mail. Of course, a third party is involved in transmitting the communication--but the Post Office and telephone companies are third parties, too. Undoubtedly, circumstances surrounding a particular e-mail or e-mail account may lead one to conclude that a citizen has no reasonable expectation of privacy--an eventuality adequately covered by the analysis this article suggests. But to conclude that the Fourth Amendment's strictures are wholly inapplicable to the warrantless interception of e-mail would be to ignore or misapply established Fourth Amendment protections and the policy considerations that lie at their foundation.

1. THE PROTECTIONS OF THE FOURTH AMENDMENT

   1. The Exclusionary Rule

      The exclusionary rule fashioned in Weeks v. United States (9) and Mapp v. Ohio (10) excludes from a criminal trial any evidence seized from a defendant in violation of his Fourth Amendment rights. The exclusionary rule also excludes fruits of evidence obtained in violation of the defendant's Fourth Amendment rights. (11) Any direct violation of the Fourth Amendment is known as a "primary illegality." (12) Any derivative evidence obtained as a result of the primary illegality is known as "fruit of the poisonous tree." (13) The primary rationale for the exclusionary rule is to deter future violations of the Fourth Amendment by the police. (14) It is a judicially designed remedy to protect citizen's Fourth Amendment rights prospectively, rather than to redress the past infringement on these rights. (15) The exclusionary rule compels law enforcement to respect the guarantees of the Fourth Amendment by taking away the incentive to disregard the Amendment's controls on government action. (16) The exclusionary rule is thus not a personal constitutional right of the accused. (17)

      The Court has indicated that application of the exclusionary rule should be rare, nonetheless. (18) The Court has "repeatedly emphasized that the rule's 'costly toll' upon truth-seeking and law...