Just last week, District Judge Mosman in Oregon ruled that, according to the language of the SCA, the government has no requirement to notify an email subscriber when their email is searched with warrant. The story was broken by the Volokh Conspiracy blog, though after some review, it was realized that Judge Mosman’s ruling is not nearly as threatening as at first presumed. Judge Mosman’s interpretation of the SCA does not obviate the need for a warrant entirely; it simply clarifies that the warrant must be served to the email provider, rather than the subscriber whose material is being searched. Judge Mosman’s opinion is here. At the bottom of page 13, Judge Mosman makes a compelling analogy to explain his ruling:
If a suspect leaves private documents at his mother’s house and the police obtain a warrant to search his mother’s house, they need only provide a copy of the warrant and a receipt to the mother, even though she is not the “owner” of the documents.
Now, Judge Mosman is not acting in a particularly high court, nor does he have an inordinate amount of sway in the legal world; one could convincingly argue that the scholars of the Volokh Conspiracy are more influential than he is, and Orin Kerr, writing the blog post, disagrees with him. But his ruling is troubling.
I also disagree with Judge Mosman. I think the essential question (as in many cases covered in the reading) over where one can maintain a reasonable expectation of privacy. When you’ve left important documents at your mother’s house, you have, intentionally or not, left private documents in a location owned and controlled by another person. A commenter on the blog named Gabriel McCall makes a counter-analogy: “In that case, the bank safe-deposit box analogy comes fully into play. Would anyone argue that warrants and notice for the bank but not the customer would be sufficient to search a box?” A safe-deposit box is a space in the bank’s keeping, but you maintain control over it; were the bank to access it, they would need to obtain your key or a copy thereof, just as an ISP would need to obtain your password or bypass its protection.
When I think of my email inbox, I think of it as a space belonging to me; it may be stored on someone else’s server, but the distinction is incidental. The safe-deposit box analogy is an apt one. Rather than your email being a space on someone else’s system, wholly within their jurisdiction, one can think of it as being more akin to a rented apartment. You exercise control over the space; in the normal course of living, you and you alone undertake operations in it. And it is an intensely private portion of your life, where you store, possibly permanently, private correspondence that you would never have released to others (have you ever written a nasty email about someone?). I maintain that any modern individual would in fact maintain a reasonable expectation of privacy in their email inbox, and as such, the government has an obligation to provide notice to a subscriber upon a warranted search.
To quote Justice Scalia in the Kyllo opinion, “With few exceptions, the question whether a warrantless search of a home is reasonable and hence constitutional must be answered no.” The principle of skepticism towards warrantless searches is necessary and fundamental to our view of liberty. The notice doctrine is a small portion of the legal language surrounding unreasonable search and seizure, but a crucial one; at the very least, any citizen is surely entitled to know when government agents have violated their privacy. And so I think I have to disagree with Judge Mosman on this one; I hope he gets overturned on appeal.
Yale Law Tech 