Skip to comments.Yes, the Government Has to Get a Warrant for Digital ‘Papers’
Posted on 12/07/2017 3:42:01 PM PST by Kaslin
The Fourth Amendment of our sensational Constitution reads as follows:
The right of the people to be secure in their persons, houses, papers, and effects,[a] against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
What this means is: Government cant invade your property or grab your stuff - without first securing a warrant. And they have to have a darn good and specific reason to ask for said warrant.
In this the Digital Age, we yet again find our government lagging way behind We the People and our private sector.
We do not store our papers and effects - the way we used to store papers and effects.
Just about gone are the old school rows and rows of filing cabinets - storing reams and reams of our papers. They have been replaced nigh totally - with records being stored electronically.
Sometimes on hard drives we own. But more often - and with ever increasing frequency - remotely on servers on which we rent space.
All too often our government seems to think that this technological advancement allows them to totally bypass the Fourth Amendment. In a plain reading of the Constitution and what its authors and ratifiers intended - it absolutely does not allow them to do any such thing.
The primary rule on any digital record is - can you print it out? The answer, of course, is yes. Congratulations, your digital record is a part of your Fourth Amendment-protected papers. All of them are...everywhere. Government: go get a warrant.
But we can address the rest of this, if government insists.
Are digital storage units anywhere part of your persons, houses, papers, and effects?
Quite obviously - if you purchase one, of course it is. But remote servers - which you do not own, but on which you lease space?
Also, quite obviously, those electronic filing cabinets are also yours - far more so than they are the governments. So accessing them, too, requires the government getting a warrant.
To wit: If you rent a physical storage unit - to store, say, your file cabinets full of your papers - the government would have to get a warrant to access it and them.
Think of those remote, rented servers - as your digital storage units. The government needs a warrant to access them.
How far behind is our government? The newest law - most pertinent to addressing digital records - is the 1986 Electronic Privacy Communications Act. A law enacted - four years before the advent of the private sector Internet.
Yet again - the government is lagging way behind We the People and our private sector.
This rendered-ridiculous-by-history law pretends to allow the government to read our emails without a warrant - if the emails are older than 180 days. Because the government at that point considers the emails abandoned.
Given modern email systems and their infinite, ceaseless storage - this is patently absurd.
Oh: And that provision of the law was unconstitutional the moment it passed.
The point of the Fourth Amendment was to protect our stuff from government. Up until they obtained a warrant.
Technological advances dont change that. Old principles for new problems.
An email of mine is an email of mine. I can print it, so its a part of my papers.
No matter how old it is. No matter how or where I store it: Printed out and in a file cabinet, or electronically on a hard drive in my possession - or on a remote server in Indiana, India or Ireland.
How bizarrely out-of-it is the 1986 law - and the various courts trying to apply it to todays tech landscape? Get a load of this:
In 2013, Microsoft challenged a U.S. search warrant seeking emails stored in its Dublin, Ireland, data center .In 2016, a federal appeals court sided against the government, ruling that the statute does not provide the authority for a warrant compelling Microsoft to disclose emails stored outside the United States. The decision was based on the well-established U.S. legal principle that presumes U.S. laws are meant to apply only within the territorial jurisdiction of the United States unless a statute explicitly provides otherwise.
Um, yes. Its a WORLD Wide Web, folks.
You want to bring back server farms to America from Ireland? Start by making our 35% corporate tax rate look a whole lot more like Irelands 12.5%. And make our regulations and the rest of our laws a whole lot less obnoxious to our private sector. Make America(n Storage) Great Again.
Existing laws made sense for an era of floppy disks, landline phones and an encyclopedia that for most required a trip to the library to access. Much of our data today is stored via a network of remote servers spread throughout the world that allows us to access data from anywhere with an internet connection. Further, each nation has different laws on privacy and electronic storage, so what may be legally required to disclose in one country may be illegal in another.
This leads to companies, not courts, having to choose between disregarding a court order from country A and violating the privacy laws of country B. Consumers also face uncertainty about the security of their electronic communications - such as email, text messages and email attachments.
Well, our Constitution is exquisitely clear. Unfortunately, our Congress and its laws are not.
We desperately, immediately need to write a law that is a whole lot more pertinent to todays private sector - and a whole lot more Constitutional than is the ridiculous 1986 Electronic Privacy Communications Act.
Please. (I thought Id end by asking nicely.)
And commercial websites obtain the information for them.
Even if you don’t have an account with those sites they are building and selling a record about you.
Especially galling (and hypocritical) is that the government considers emails not as electronic bits, bytes, or ones and zeros, but in all ways equivalent to words written on paper, and subject to all laws that govern *your* uttering them -—
-— but, when it is convenient for them, considers the same electronic records as fundamentally different from your private papers and effects, and not subject to the rules that prevent *them* from warrantless search and seizures.
Then should be required to state whether they consider emails, etc., one way or the other.
Someone may want to tell the (R)NC. Seems they need a refresher on their A1S8 powers vs. our 4th A. Rights...They did ‘give’ us the NSA, ‘Patriot Act’ and the like.
Yet, nobody even blinks an eye re: FISC\FISA.
Whom watches the Watchmen??
He might want to closely read his contract with the cloud storage provider. Some cloud providers do say they will protect some rights of the customer.
Even in the USSR the police complained that their hands were tied.
People are closing escrow on houses online, the FBI argues that they should be able to see it all based on the 3rd party doctrine
Oh they have to get a warrant? Im sure the judge will rigorously demand justification.
Exactly! The FedGov does an end run around the Constitution by asking the corporations we contract with to turn over the information they gather. What makes thus even more egregious is that these corporations are totally beholden to the FedGov for all kinds of licenses and permits and regulatory rulings etc... So they will never really resist any pressure and more or less hand over anything upon request no warrant required.
And good also when the police demands that you provide a password to your computer or smart phone. Just like they may get a warrant to search your locked safe, you do not have to provide the combination to make it easier for them.
Reminds me of when the Feds raid the records of 80% lower manufacturers like Ares. The third party BS, yep. When it comes to guns and electronics, the guberments seem to think they own it all.
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