By: Matthew Lumpkin

 

History and Introduction:

Interpretation of the Fourth Amendment, which protects against unreasonable searches and seizures,[1] was relatively straightforward with regard to communication when a citizen’s only concern was with the Government intercepting their correspondences sent via post.[2] Since then, Courts have struggled to properly interpret the Fourth Amendment with respect to modern forms of communication. The Government inevitably seems to find ways to monitor these new forms of communication but laws limiting such government intervention lag behind the fast-moving technology.

The Wiretapping Act of 1968, which dealt primarily with the warrantless interception of communications via telephone became quickly outdated as computers became more prevalent.[3] In order to respond to the woefully outdated nature of the Wiretapping Act, the Office of Technological Advancements released a report calling for new legislation that would properly address the new forms of electronic communication. In 1986, Senators Leahy and Mathias introduced the Electronic Communications Privacy Act (“ECPA”), which was designed to clarify the standards for the obtainment of electronic records and communications while protecting the privacy rights of users.[4] The ECPA is composed of three titles: the Wiretapping Act,[5] the Stored Communications Act (“SCA”),[6] and the Pen Register Statute.[7]

The Wiretapping Act and the Pen Register Statute are not without their faults, but the more controversial part of the ECPA is the SCA. The SCA deals with stored electronic communications of any kind. It divides computer services into electronic communication services (“ECS”) and remote computing services (“RCS”).[8]  In order to access ECS, the Government must receive a search warrant based on probable cause for communications that are 180 days old or fewer.[9] For communications that are more than 180 days old, then the Government need only obtain a subpoena or a court order with a burden of proof that is less than probable cause.[10] This 180-day cutoff is based on the fact that the storage of electronic communications was extremely expensive when the ECPA was first enacted almost 30 years ago.[11] The Government does not need a warrant to access RCS.[12]

 

The Fourth Amendment and the SCA: A Delicate Dance:

There are multiple concerns that the SCA cannot be squared with the Fourth Amendment. First, the 180-day cutoff seems arbitrary.[13] An email does not lose its importance or privity on day 181 such that it no longer deserves constitutional protection. Courts have not addressed the concerns raised by this arbitrary number. They instead choose to rely on the reasonable expectation standard, which asks whether or not the plaintiff had a reasonable expectation of privacy with regards to the communication.[14] Other courts simply suggest that the defendant, whose communications were taken without warrant or probable cause, should seek the exclusionary remedy,[15] which is when a defendant would argue that the evidence obtained by the search should not be admitted in court. Illinois v. Krull made it clear that the exclusionary remedy is unsatisfactory. There, the court created a good faith exception to the exclusionary remedy when law enforcement officials are laboring under a constitutionally questionable statute while they commit the search and seizure in question, which practically rules out such a remedy.[16] The Fourth Circuit en banc suggested that if the exclusionary rule is not a viable remedy, then the plaintiff can attempt to bring a Bivens action, suing the Government. However, as the defendant in this case rightly points out, it is unlikely that many plaintiffs will succeed in such an action.[17]

Another concern regards the scope of the search and seizure. The Fourth Amendment requires a warrant that is particular as to what will be searched and possibly seized.[18] Without requiring a warrant, which the SCA does not for RCS or for ECS communications which are 181 days or older, it is nearly impossible to ensure particularity. It seems that any communication is fair game.[19] This gaping loophole lays in stark contrast to the Wiretapping Act, which proposed minimizing intrusion, by allowing law enforcement officials to listen only to conversations related to the investigation.[20]

In addition to the Government accessing all of the communications they want, they also have a 90-day window within which they have to inform someone that the Government is obtaining their electronic communications. Essentially, the Government can read someone’s personal and secretive communications for 90 days without that person being the wiser.[21] The requirements for obtaining this privilege of monitoring are that notifying the suspect creates the risk of: “(A) endangering the life or physical safety of an individual; (B) flight from prosecution;  (C) destruction of or tampering with evidence; (D) intimidation of potential witnesses; or (E) otherwise seriously jeopardizing an investigation or unduly delaying a trial.”[22] It would seem that all criminal investigations meet at least one of these standards.

Despite these concerns, the Supreme Court is yet to take a case that addresses the constitutionality of the SCA. The lower courts that address these concerns, address them through an opaque lens that is warped either by judicial deference to the Legislature, or by the reasonable expectation standard.[23] It is a delicate dance, and no one wants to step on anyone else’s toes.

 

Proposed Reforms And Critique:

Not all is doom and gloom. Senators Leahy and Lee have introduced a bill with possible reforms to the SCA. The third section of the proposed bill eliminates the 180-day cutoff all together and requires a search warrant based on probable cause for all searches and seizures from both ECS and RCS. This section also states that the Government must provide notice to the suspect and a copy of the search warrant within 10 business days for a law enforcement agency, and three for other agencies, with exceptions laid out in section four.

Section four deals with delayed notice. It states that the Government can obtain a court order delaying notification for up to 180 days if it is a law enforcement agency and 90 days if it is another type of agency. The court may tack on 180-day or 90-day periods with subsequent court orders.

The final reform proposed in the bill is listed in section five and it suggests that the Government Accountability Office—the “watchdog” of Congress—do an evaluation. This evaluation would take a look at various data: how often law enforcement relied on SCA to obtain electronic communications, the average length of time it takes for a service provider to comply with requests, the number of times a warrant was used to obtain the information, and how often notice was delayed. This section also asks the Comptroller General to monitor whether or not the new warrant requirement has had any effects.[24]

Although these reforms do touch on some critical points of controversy, such as the warrant requirement, the scope issue, and the ECS-RCS distinction, there is room still for further changes to the SCA. The notice requirement has not been amended to correctly mirror notions of fairness. Third-party service providers have to notify the Government three business days before they inform the consumer, if they decide they’d like to inform the consumer in the first place, of Government monitoring. This allows the Government enough time to go back to the judge they got the original court order from, and get another one extending the period of delay in notice. The reforms also extend the amount of time the Government can delay providing notice, and so by stacking court orders a user could be spied on for a year (two court orders) before they even knew that there communications were being monitored.

The SCA still has a ways to go before it accurately mirrors the technological landscape and the concepts of fairness and privacy that flow through the fabric of modern society. One wonders when the delicate dance will end. Will the Supreme Court finally decide the constitutionality of the Act, or will the reforms come to pass so that the difficult question does not have to be answered? Some commentators suggest that the entire SCA should be repealed and then new legislation that fits more with society as it is, not as it once was and that can be reconciled with the Constitution should be enacted. With technology advancing so much faster than the Legislature passes reforms, while the Judiciary continues to sidestep, one wonders whether or not the SCA can survive another three decades before it must be reformed again. The answer seems to be, probably not.

 


 

[1] U.S. Const. amend. IV.

[2] See Generally Ex parte Jackson, 96 U.S. 727 (1877)

[3] United States v. Seidliz, 589 F.2d 152, 157-58 (holding that former employee of government agency who was deemed a spy could not rely on Wiretapping Act because electronic communications were not aural and stored ones were not being transmitted).

[4] Electronic Communications Privacy Amendments Act of 2013, S.R. 113-34, 113th Cong.

[5] 18 U.S.C. §§2510-22.

[6] Id. at §§ 2701-12.

[7] Id. at §§ 3121-27.

[8] Id. at §§ 2703(b)(1) and (2)

[9] Id. at §§ 2703(a)

[10] Id. at §§2703(d)

[11] Orin S. Kerr, The Next Generation Communications Privacy Act, 162 U. Pa. L. Rev. 373, 391 (2014)

[12] See 18 U.S.C. §§ 2703(b)(1)(B)(ii)

[13] See Alexander Scolnik, Protections for Electronic Communications: The Store Communications Act and the Fourth Amendment, Fordham L. Rev. 349, 377 (2009) (suggesting that 180 day cutoff is based on outdated understanding of email usage).

[14] See Katz v. United States, 389 U.S. 347, 361 (Harlan, J., concurring).

[15] Warshak v. United States, 532 F.3d 521, 528 (6th Cir. 2008) (en banc)

[16]See 480 U.S. 340, 349-353

[17] Warkshak, 532 F.3d at 532. The court admits that Bivens claims may not settle constitutional validity inquiry (Citing Scott v. Harris, 550 U.S. 372, 378 (2007)).

[18] US. Const. amend. IV.

[19] See 18 U.S.C. §2702(c). Vaguely referencing the divulging of “a record or other information”.

[20] Kerr supra note 11, at 383.

[21] 18 U.S.C. §§2705(d)

[22] Id. at §2705(a)(2)

[23] See generally Warshak v. United States, 532 F.3d 521(Martin, J., dissenting).

[24] See generally Electronic Communications Privacy Amendments Act of 2013, S.R. 113-34, 113th Cong. p. 8-9