Google Determines Emails Are “Papers and Effects”

Friday, January 25, 2013, by Dylan Novak

Many people in the world have an extreme misunderstanding of their right against government searches. The layman often believes that a person is guaranteed the right to privacy by the Constitution, and therefore, the government cannot electronically track a person or look at their personal data. In reality, there is no constitutionally guaranteed right to privacy, just the Fourth Amendment and the limited protection it provides under modern jurisprudence. Despite there being no constitutional right to privacy per se, Google, Inc. has decided to stand up for its customers and demand warrants when government seeks stored data. The decision by Google to extend Fourth Amendment protections to emails and stored data could lead to a Supreme Court review of the issue.

Google’s decision to require a warrant is quite bold because they are legally allowed to produce the data voluntarily and can even be required to by law. In 1986, Congress passed the Electronic Communications and Privacy Act (the Act), which regulated when the government would need a warrant to obtain electronic information. While the Act does require the government to obtain a warrant if the information has not been on the server for one hundred and eighty days, the Act still allows for voluntary disclosure under some circumstances.

The most troubling sections of the Act allow the government to require the disclosure of data that has been on a server for longer than one hundred and eighty days. In these circumstances, the government does not need probable cause and can substitute a subpoena or court order. These court orders can be given out so long as there is a “reasonable” determination of the data’s relevance to a criminal investigation. This loophole is supported by the Supreme Court because the Court has previously held that individuals have no expectation to privacy for information voluntarily turned over to third parties.”

Three decades ago, the public would not have worried about the lesser requirement of “reasonable,” instead of probable cause, because emails were not stored on servers. These days, every Gmail account stores ten gigabytes of emails for free, which is around 177,000 emails. In all those emails, there would be a lot of private details that the Supreme Court tends to protect under the Fourth Amedment. These saved emails are especially likely to be private in nature because people tend to save conversations that are important to them, not impersonal spam messages.

With the introduction of the digital age people may not be as secure in their “papers and effects” as they once were, but it is good to know that corporations like Google are still willing to put themselves on the line to protect their customers. As Justice Sotomayor said in United States v. Jones, perhaps it is time to “reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.”