Commentary

Email Privacy Act Paves Way for Institutionalized Violations of the Fourth Amendment

Mark Fitzgibbons
By Mark Fitzgibbons | July 31, 2015 | 10:21 AM EDT

FILE – In this June 6, 2013 file photo, a sign stands outside the National Security Agency (NSA) campus in Fort Meade, Md. The NSA considered abandoning its secret program to collect and store American calling records in the months before leaker Edward Snowden revealed the practice, current and former intelligence officials say, because some officials believed the costs outweighed its meager counter terrorism benefits. (AP File Photo/Patrick Semansky)

So-called email privacy bills moving towards bipartisan passage in Congress encourage bureaucrats to get and read our emails without a warrant signed by a judge.

The Email Privacy Act, H.R. 699, and its Senate companion bill S. 356, actually authorize and encourage hundreds of federal and state agencies to violate the Fourth Amendment with respect to the content of private emails.

With all the recent clamor and attention from the media, privacy groups and even members of Congress about the blind, untargeted metadata collection by the National Security Agency (NSA) for national security reasons, these bills sell out our private “security” protected by the Fourth Amendment regarding our most intimate thoughts and communications.

While purporting to require warrants signed by judges to search or seize emails from email storage systems such as “the cloud,” these bills expressly allow federal and state agencies to issue judge-less “administrative subpoenas” to obtain private emails and content from individuals, businesses and nonprofit organizations. In other words, it allows the subpoena of every person and private entity in America, except email storage providers.

What the NSA has been doing for national security purposes in blindly collecting metadata pales in comparison to encouraging hundreds, perhaps thousands, of federal and state agencies to collect and read the actual content of emails for far more mundane and non-exigent purposes than national security.

This encourages the government to actually target minority groups, critics of government, practitioners of their religious beliefs, and others, thereby creating an environment to chill and even punish the exercise of First Amendment rights. That’s not paranoia; that’s the very history and purpose of why we have the Fourth Amendment.

Administrative subpoenas are issued unilaterally by bureaucrat agencies without “probable cause,” and without “oath and affirmation” before neutral judges. They are impossible to reconcile with the express and plainly written requirements of the Fourth Amendment, which protects our “security” in our “houses, person, papers and effects.”

As Justice Sotomayor highlights in her recent opinion in City of Los Angeles v. Patel, the judicial standard of utter deference to administrative subpoenas makes it so improbable to enjoin them that few people even bother to try: “Given the limited grounds on which a motion to quash [an administrative subpoena] can be granted, such challenges will likely be rare,” wrote Justice Sotomayor. 

Warrants can’t be issued by bureaucrats or police because they are “judicial acts,” as explained by influential English jurist Sir Matthew Hale in his History of Pleas of the Crown first published in 1736.  Even H.R. 699 and S. 356 acknowledge this clear and fundamental Fourth Amendment and judicial principle by their very existence – yet still violate it by continued authorization (and encouragement!) of judge-less administrative subpoenas to search, seize and read emails from every person and private entity except through email storage units.

But every computer and nearly every cell phone of every American is a micro “email storage unit.”

While federal and state statutes now authorize administrative subpoenas, Chief Justice John Marshall wrote in Marbury v. Madison, “Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation … [and] an act of the legislature repugnant to the constitution is void.”

In a famous dissent from Olmstead v. United States, Justice Louis Brandeis wrote back in 1928: "Ways may someday be developed by which the Government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home … . ‘That places the liberty of every man in the hands of every petty officer’ was said by James Otis of much lesser intrusions than these."

Judge-less administrative subpoenas are now being used to obtain even confidential medical records.

Perhaps the best and most prescient opposition to administrative subpoenas was written by Justice Frank Murphy, an appointee of President Franklin D. Roosevelt, in his dissenting opinion in the 1946 Oklahoma Press Publishing case. Quoting the Declaration of Independence, Justice Murphy noted how such methods of searches were so contrary to liberty and law that they previously contributed to "successful revolt.” Wrote Justice Murphy:

“Administrative law has increased greatly in the past few years, and seems destined to be augmented even further in the future.

“To allow a nonjudicial officer, unarmed with judicial process, to demand the books and papers of an individual is an open invitation to abuse of that power.

“Only by confining the subpoena power exclusively to the judiciary can there be any insurance against this corrosion of liberty.

“Liberty is too priceless to be forfeited through the zeal of an administrative agent.”

Emails must be considered “electronic” papers subject to Fourth Amendment protections every bit as much as Justice Brandeis predicted. The Fourth Amendment guarantees security, privacy and private property rights in all papers and effects.  It is time to eliminate judge-less administrative subpoenas, which are institutionalized violations of the Fourth Amendment.

Mark J. Fitzgibbons, Esq. is an attorney and co-author with Richard Viguerie of "The Law That Governs Government."

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