The Warrantless Interception of E-Mail: Fourth Amendment Search or Free Rein for the Police?

Article excerpt

INTRODUCTION
I. THE PROTECTIONS OF THE FOURTH AMENDMENT
       A. The Exclusionary Rule
       B. The Fourth Amendment's Application
           1. The Special-Needs Doctrine
           2. Diminished Expectations of Privacy
       C. Kyllo, Technology, and the Fourth Amendment
II. FOURTH AMENDMENT PROTECTION OF REGULAR MAIL
III. E-MAIL AND THE FOURTH AMENDMENT:
       THE CURRENT LANDSCAPE
       A. Fourth Amendment Protection of Electronic
          Communications
       B. Case Law Specific to E-mail
IV. INTERCEPTION OF E-MAIL AND THE FOURTH AMENDMENT
       A. What is an Interception?
       B. Interception of E-mail Addresses
       C. Interception of E-mail Content
V. DETERMINING WHETHER THE WARRANTLESS
       INTERCEPTION OF E-MAIL IS A FOURTH AMENDMENT
       SEARCH: A PROPOSED ANALYSIS
       A. Does the Sender of the E-mail Have a Subjective
          Expectation of Privacy?
       B. Is the E-mail Sender's Subjective Expectation of
          Privacy Objectively Reasonable?
CONCLUSION

INTRODUCTION

The local police have set up an innovative new sting operation. The police are intercepting the e-mail messages of any person whom they have any hunch may be involved in something illegal. (1) After rummaging through the e-mail of many hundreds of innocent people in the community, the police finally stumble upon evidence of criminal activity in the e-mail of a particular citizen. Based only on the intercepted e-mail messages, the police arrest the citizen, and the prosecutor charges the citizen with several crimes. It is now the day of the all-important suppression hearing. The intercepted e-mail messages are powerfully incriminating evidence, and the only real hope is to have the evidence excluded. The police seized all of the evidence against our citizen by intercepting his email messages without a warrant or any particularized suspicion. Will the e-mail be admitted or suppressed?

The Wiretap Act (2) provides that it is unlawful "to intercept or access an electronic communication made through an electronic communication system that is configured so that such electronic communication is readily accessible to the general public." (3) The Wiretap Act explicitly sets forth an exclusionary rule for wire and oral communications intercepted in violation of the Act's provisions. (4) This would seem, at first pass, to be a winning argument for our citizen to exclude his email from evidence. The Act has, however, been interpreted as having no exclusionary rule for electronic communications intercepted in violation of its terms. (5) Authentication and hearsay issues aside, the prosecutor appears to be able to introduce the e-mail messages--which were intercepted without a warrant--against our citizen, unless the Fourth Amendment's exclusionary rule provides the citizen with some recourse. But does the exclusionary rule apply to police interception of the citizen's e-mail?

The Fourth Amendment's exclusionary rule would only provide such a recourse if the interception was a "search"--in other words, if it interfered with an individual's reasonable expectation of privacy. E-mail has now become a widely accepted method of communicating, if not the predominant one. It seems that most, if not all, e-mail users expect that their e-mail will remain private, at least until the messages reach the intended recipient. So it seems that e-mail users have an expectation of privacy as to the content of their e-mail messages--one that society views as objectively reasonable. With that in mind, the interception of e-mail messages without a warrant should be considered a "search" for purposes of the Fourth Amendment.

Applying a similar rationale, courts have long held that the content of sealed mail is subject to the Fourth Amendment's protections. Indeed, the Fourth Amendment expressly mentions "papers" as one of things that the people have a right to keep free from unreasonable searches. …

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