Home Is Where Your Modem Is: An Appropriate Application of Search and Seizure Law to Electronic Mail
Bertron, Megan Connor, American Criminal Law Review
"For people who want privacy, there may be no place like home."(1)
A person's home not only provides a shield from nosy neighbors; the home also provides protection from an intrusive government. While Fourth Amendment protections have continued to erode in many areas, the home has maintained its highly protected status,(2) and police generally must have a warrant to enter a person's home without consent.(3) When a person leaves home, expectations of privacy diminish because her actions are exposed to the public eye and she can no longer expect the same seclusion that is afforded by the closed doors of her home. When a person remains inside her home, however, and writes a letter or places a telephone call, she expects heightened privacy protection despite using semi-public means of communication. This is because she is still within the confines of that ultimate place of privacy -- the home -- and she has made her desire for privacy clear.
Despite this healthy respect for the home in American privacy law, those Americans with homes in "cyberspace" do not necessarily have an equal amount of privacy protection from law enforcement. In particular, while first class mail is protected on an equal footing with a person's home, cyberspace mail is not equally protected but is instead provided even less protection than telephone communications.
In 1966, when telephone communications were experiencing increased threats to privacy from advanced surveillance technologies, Alan Westin observed that "[p]rospects for physical surveillance technology in the coming decade indicate that the problem of insulating private conduct will be further intensified."(5) The Supreme Court and Congress responded with legal doctrines to protect telephone conversations.(6) In the 1990s, prospects for electronic surveillance likewise threaten the privacy of millions of Americans who send electronic mail (e-mail) from their cyberspace homes over the Internet to friends, family, and other acquaintances. Despite the intervening decades, surveillance technologies continue to threaten the same "sense of privacy that is of concern most often in ordinary life" -- informational privacy.(7) At its most basic level, informational privacy refers to an individual's interest in controlling how, when, and where personal information is disseminated. Without the ability to control this dissemination, individuals lose their senses of autonomy(8) and personhood.(9)
Among the greatest legal protectors of informational privacy is the Fourth Amendment. The Amendment protects "persons, houses, papers, and effects" from unreasonable search and seizure by the government.(10) "The peculiar immunity that the law has thrown around the dwelling house of man"(11) reflects society's desire to have a place of retreat and ultimate privacy that is out of reach of all others.(12) Similarly, the law provides equal protection to first class mail because of its highly private nature -- as evidenced by the sender's use of an envelope to shield the contents before briefly releasing it into public hands for transmission.
Opposing these Fourth Amendment privacy interests are the law enforcement concerns of the government. As new technologies have developed that enable criminals to hide evidence of crime behind the shield of the Fourth Amendment, legislatures and the courts have developed a series of exceptions to the warrant requirement as well as special statutory rules for the most problematic tools used by criminals -- including telephone communications. The current dilemma faced by lawmaking bodies is how to maintain the privacy protections guaranteed by the Constitution in the face of technologies, such as electronic mail, that make the planning and commission of crime even more efficient.
This Note argues that first class mail receives greater privacy protection than telephone communications and that because e-mail is more comparable to first class mail, it deserves this greater privacy protection. …