On the WSJ Law Blog this afternoon On Gmail and the Constitution, LegalBlogWatch, and on Techblogger and yesterday on The Volokh Conspiracy, is a report of In the Matter of an Application of the United States for a Search Warrant on the Contents of Electronic Mail, 665 F. Supp. 2d 1210 (D. Ore. 2009), holding that the Fourth Amendment does not require notice to an e-mail account holder of the contents of a search warrant to an ISP for the content of e-mails.

This is an interesting opinion and worth the read. The sad fact is that an amendment will be required to put a notice provision into the Stored Communications Act. People think e-mail is private like letters in transit, but "[t]he blunt fact is, they are not." Technology is steadily overcoming the Fourth Amendment. From GPS to e-mail, our privacy is slipping away, and older notions of the meaning of the reasonable expectation of privacy no longer seem to apply. If people think that e-mail is private, then why cannot they have a subjective expectation of privacy "that society is prepared to recognize as 'reasonable'"? Katz, infra, at 361 (Harlan, J., concurring).

II. The Constitutional Notice Requirement is Met by Executing the Warrant on a Third Party

As discussed earlier, the SCA was intended to codify overarching Fourth Amendment protections into a specific statute. What Fourth Amendment protections, if any, conferred on e-mail and other electronic communication independent of the SCA is, to date, unclear. See Kerr, supra, at 1210-12. Assuming, for the sake of argument, that the e-mails at issue in this case are protected under the Fourth Amendment, it is necessary to determine whether there is a constitutional requirement for notice to the subscriber of the e-mail account.

Although the Fourth Amendment does not prohibit surreptitious entries, per se, the absence of a notice requirement in a warrant “casts strong doubt on its constitutional adequacy.” United States v. Freitas (Freitas I), 800 F.2d 1451, 1456 (9th Cir. 1986) (internal citations omitted). The Supreme Court has noted that failing to require notice and return procedures for a warrant allows the government full discretion regarding what to seize, and thus allows searches and seizures “without adequate judicial supervision or protective procedures.” Berger v. New York, 388 U.S. 41, 60 (1967) (striking down a New York law that permitted any judge to issue an ex parte order for eavesdropping upon oath or affirmation of an attorney or officer, as violating the Fourth Amendment due to lack of requirement for particularity as to the related crime, the place to be searched or conversations sought, and a failure to require exigent circumstances). The sanctity of the home is often cited as the central purpose for this notice requirement, but the requirement has not been explicitly limited to searches of homes. See, e.g., Freitas I, 800 F.2d at 1456 (stating that “[t]he mere thought of strangers walking through and visually examining the center of our privacy interest, our home, arouses our passion for freedom as does nothing else”).

Notice does not always have to be provided before a search or seizure occurs. See Dalia v. United States, 441 U.S. 238, 248 (1979) (holding that “[t]he Fourth Amendment does not prohibit per se a covert entry performed for the purpose of installing otherwise legal electronic bugging equipment”). “[O]fficers need not announce their purpose before conducting an otherwise authorized search if such an announcement would provoke the escape of the suspect or the destruction of critical evidence.” Katz v. United States, 389 U.S. 347, 355 n. 16 (1967) (citing Ker v. California, 374 U.S. 23, 37-41 (1963)); see also Nordelli v. United States, 24 F.2d 665, 666-67 (9th Cir.1928) (holding that Rule 41(d), now Rule 41(f)(1)(C), does not invariably require that the copy of the warrant and receipt be served before a search takes place). However, when there is no advance notice, a substitute must exist to satisfy the Fourth Amendment, as in Title III, which has been held to provide “a constitutionally adequate substitute for advance notice by requiring that once the surveillance operation is completed the authorizing judge must cause notice to be served on those subjected to surveillance.” Dalia, 441 U.S. at 248.

It is clear that notice is an essential part of the reasonableness calculus in judging searches and seizures under the Fourth Amendment. The Federal Public Defender has argued that this constitutional notice requirement supports Judge Hubel's determination that the copy of the warrant and receipt (what the parties refer to as notice) must be provided to the subscriber to the e-mail account, rather than just to the ISP. The notice must be provided to the subscriber because the ISP “has a far lesser privacy interest in the content of its subscriber's e-mails than the subscribers themselves.” (Amicus Br. (# 28) 21.)

This argument fails to take into account the third party context in this case. 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. See Fed.R.Crim.P. 41(f)(1)(C) (stating that the officer executing the warrant “must give a copy of the warrant and a receipt ... to the person from whom, or from whose premises, the property was taken”). In such a case, it is irrelevant that the suspect had a greater privacy interest in the content of the documents than did his mother. When he left the documents in her possession he no longer has a reasonable expectation of privacy in their contents. See California v. Greenwood, 486 U.S. 35, 41 (1988) (holding that “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties” (quoting Smith v. Maryland, 422 U.S. 735, 743-44 (1979))); see also United States v. Miller, 425 U.S. 435, 443 (1976) (“This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.” (citing United States v. White, 401 U.S. 745, 752 (1971))). In fact, the suspect in such a case, were he to become a defendant in court, would not have standing to object if there were constitutional deficiencies in the warrant used to search his mother's home. United States v. Payner, 447 U.S. 727, 731-32 (1980) (holding that a defendant had no standing to object to the illegal seizure of his financial records from his banker); see also Rawlings v. Kentucky, 448 U.S. 98, 105-06 (1980) (holding that defendant did not have standing to object to search of a third party's purse, despite the fact that he claimed ownership of the drugs found in that purse, because he had no legitimate expectation of privacy in someone else's purse); Rakas v. Illinois, 439 U.S. 128, 149 (1978) (holding that defendants could not make a Fourth Amendment claim regarding a search of someone else's car because they had no “legitimate expectation of privacy in the glove compartment or area under the seat of the car in which they were merely passengers”).

Similarly, in the third party subpoena context, the “general rule [is] that the issuance of a subpoena to a third party to obtain the records of that party does not violate the rights of a defendant, even if a criminal prosecution is contemplated.” Miller, 425 U.S. at 444. In Miller, the Court held that bank records obtained from a bank pursuant to a subpoena were admissible against the bank depositor whose records had been seized. Id. at 445. The Court first determined that the depositor had no legitimate expectation of privacy in the records because they were instruments used in commercial transactions and the information was “voluntarily conveyed to the banks and exposed to their employees in the ordinary course of business.” Id. at 442-43. When no expectation of privacy was found, the court applied the general rule for third party subpoenas, affirming the district court's denial of the motion to suppress the bank records. Id. at 444-45.

Here, the defendants voluntarily conveyed to the ISPs and exposed to the ISP's employees in the ordinary course of business the contents of their e-mails. The Google privacy policy explicitly states that Google will share personal information of its subscribers when it has “a good faith belief that access, use, preservation or disclosure of such information is reasonably necessary to ... satisfy any applicable law, regulation, legal process or enforceable governmental request.” ... Thus subscribers are, or should be, aware that their personal information and the contents of their online communications are accessible to the ISP and its employees and can be shared with the government under the appropriate circumstances. Much of the reluctance to apply traditional notions of third party disclosure to the e-mail context seems to stem from a fundamental misunderstanding of the lack of privacy we all have in our e-mails. Some people seem to think that they are as private as letters, phone calls, or journal entries. The blunt fact is, they are not.

In this third party context, the Fourth Amendment notice requirement is satisfied when a valid warrant is obtained and served on the holder of the property to be seized, the ISP. In this case, the ISPs were served with the warrants to obtain the relevant e-mails. The requirements of the Fourth Amendment were satisfied.