Digital privacy bill still abandons probable cause for our papers

The bipartisan ECPA Modernization Act of 2017 introduced by Sens. Patrick Leahy (D-Vt.) and Mike Lee (R-Utah) is a welcome correction to a legislative flaw in the Fourth Amendment protections of emails stored in the cloud. Because of a law created before the cloud came to be, emails stored longer than 18 months could be accessed by government agencies without a warrant signed by a neutral judicial officer after presentation of probable cause of unlawful activity.

Citing the most basic Fourth Amendment protocols against warrantless access to emails, the bill was introduced under the premise of fixing that flaw for these older emails in the cloud. The bill, though, still leaves open probable cause-free access to emails and other “papers” through use of judgeless administrative subpoenas.

{mosads}The warrant provision of the Fourth Amendment protects Americans’ right of security in their persons, houses, papers, and effects, which was judicially construed in the 20th century as protecting “privacy.” It is a fundamental line of defense against a police state, requiring probable cause submitted under oath and affirmation in advance of a search conducted via the writ of a warrant. This antecedent process for writs to search protects Americans’ security against unreasonable government intrusions and trespasses, and should naturally apply to digital “papers,” which include emails, photographs, and other electronically stored documents and records of individuals, businesses and nonprofit organizations.

A rule of construction in the ECPA Modernization Act that is entirely inconsistent with the sacrosanct warrant and probable cause provisions of the Fourth Amendment is that it “shall [not] limit an otherwise lawful authority of a governmental entity to use an administrative subpoena authorized by Federal or State statute.”

Administrative subpoenas, also called “civil investigative demands,” are search writs issued by government agencies and state attorneys general or prosecutors to disgorge private papers. They may be issued without probable cause, and require no before-the-fact review by neutral judicial officers. They may be enforced in court under threat of contempt and other penalties, and courts give Chevron deference to these writs, meaning the issuers of them may in large degree determine the scope of the laws they claim to be enforcing.

In these regards, administrative subpoenas are worse than the general warrants banned by the Fourth Amendment after America’s colonial experience with the Writs of Assistance, which in fact helped foster the American Revolution. The Writs of Assistance targeted colonial merchants, but were at least issued by judges who could determine that legitimate laws were being enforced. These colonial Writs required returns before judicial officers, and government searchers were subject to legislative penalties and even private lawsuits for exceeding the scope of the judicially authorized searches. Some colonial judges even refused to issue these Writs when government officials refused to provide facts under oath.

The administrative subpoena regime abandons the requirement of probable cause both before issuance by the searchers themselves and in after-the-fact judicial hearings to enforce them. Unlike the general warrants under which judges determined the scope of the searches in advance, although leaving the persons, businesses, and places to be searched up to the discretion of the government searchers, administrative subpoenas may be issued based on flawed interpretations of the law and without independently verified facts indicating law may have been violated by the targets.

Administrative subpoenas therefore lack the separation of powers found even in the Writs of Assistance regime. The discretion of searchers under the administrative subpoena regime is therefore broader and in many ways more dangerous to the Fourth Amendment right of security than the Writs of Assistance.

The Boston Globe recently reported that the American Civil Liberties Union of Massachusetts is calling out the “explosion in the use” of these “sanctioned fishing expedition tool[s],” and how some state prosecutors have refused to disclose how many they issue. This mirrors my own experience with one state attorney general who ducked a Freedom of Information Act request about the quantity she issues, claiming “attorney-client privilege” among other excuses not to comply.

Administrative subpoenas are in fact impossible to reconcile with the Fourth Amendment. The very premise of the ECPA Modernization Act is that government may not violate the security of private records unless a judge has issued a warrant after hearing probable cause under oath that facts indicate a law is being broken. Government officials will exploit this expressly sanctioned loophole in the bill and subpoena emails directly from their targets in this probable cause-free administrative subpoena regime. Neither digital nor hard records will be safe from unreasonable government searches and compelled disgorgement.

Mark J. Fitzgibbons is President of Corporate Affairs at American Target Advertising, Inc.

The views expressed by this author are their own and are not the views of The Hill.