What Does the Fourth Amendment Protect?

Fourth Amendment Protection – Imagine glancing outside to see a uniformed man rifling through your mailbox. When you approach, he grins broadly from behind a pair of mirrored aviators.

“What’s this all about, officer?” you inquire.

“Oh, nothing in particular,” he replies, shredding his way into another envelope bearing your name. “Just thought I’d see if you’re up to anything suspicious!”

You would be rightfully outraged, and with a good defense lawyer could get evidence obtained in this manner thrown out. Yet, under certain circumstances, the government is empowered to do substantially the same thing to your email inbox: conduct warrantless, “suspicionless” searches of the content of your communications. Fourth amendment protection is becoming increasingly confusing as technology changes introduce more third parties into our communication.

No Warrant Needed to Search Third Party Email Servers Under Outdated Law

“The Fourth Amendment protects people, not places,” Justice Potter Stewart famously wrote in the seminal Supreme Court case Katz v. U.S. Under the Fourth Amendment, the government may not subject you to unreasonable searches and seizures, meaning that to conduct a search, the police must first obtain a warrant from a neutral magistrate, or the search must otherwise be reasonable under one of a limited number of exceptions to the warrant requirement. Intrusive searches must be limited in scope and based on a sufficient level of suspicion that a crime has been committed.

In the days of the Framers, the Fourth Amendment was primarily about protecting physical locations – the inside of a home, for example, or the contents of a chest. The important sentiment of Justice Stewart reflects the changing application of the Fourth Amendment as technology advanced in the 20th Century. Americans came to expect the same level of privacy in the contents of a phone call as in the contents of a filing cabinet.

Yet, law notoriously lags behind technology. As former NSA contractor Edward Snowden disclosed that the government was gathering online metadata, many Americans remained unaware that law enforcement bodies already had easy access to the actual content of most emails.

What is Proper Fourth Amendment Use?

As a general legal principle, one who gives information to third parties surrenders his or her expectation of privacy for that information, and thus gives up his or her Fourth Amendment safeguards. For instance, even absent a warrant, the government may listen to a call made on speaker phone in a crowded café, because the caller does not expect it to be private.

Under the Stored Communication Act of 1986, this principle was grossly expanded to include email messages stored on third party servers, on the theory that messages made available to the server owner were no longer private. When the Act became law, storage of email on third party servers was rare. Today, third party email servers contain billions of bytes of data. While a police officer cannot demand that you turn over the contents of your own email without a warrant, if your messages are stored on a third party server (as most are), that officer may subpoena Gmail or Yahoo to reach the same information.

Texas Leads the Way in Defending the Right to Privacy in Electronic Communication

As of September, 2013, Texas is the only state with a law specifically prohibiting warrantless searches of third party email servers. But, federal law enforcement agents are not bound by the law, and even though some appellate court decisions have denounced the practice, many officials still treat the Fourth Amendment as though it is protecting the nebulous “place” where email is stored rather than the “people” who expect their electronic communications to be private. If you have been charged with a crime, fully protect your Fourth Amendment rights by contacting a Dallas criminal defense attorney.