Jun 26, 2014 - 1:30pm

Government Should “Get a Warrant” Before Searching Emails

Senior Editor, Digital Content


A Samsung Galaxy S5 smartphone, and an Apple iPhone 5c.
Photo credit: Brent Lewin/Bloomberg

When it comes to searching through someone’s cell phone, the U.S. Supreme Court made it perfectly clear: “Get a warrant.” National Journal reports:

The sweeping opinion is seen by privacy advocates as a substantial victory in the fight against government's tightening grip on the private, digital communications of U.S. citizens, and could be a precursor to how the Court handles other questions regarding government surveillance, an issue that has been at the forefront of international policy debates since the Edward Snowden leaks first surfaced last June.

Chief Justice John Roberts, writing for the Court, said the contents of a person's phone are protected under the Fourth Amendment and must be treated as different in "a quantitative and qualitative sense" from other, non-digital personal items.

"Modern cell phones are not just another technological convenience," Roberts wrote. "The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant."

For a quick analysis of the ruling, read law professor Orrin Kerr’s post at the Volokh Conspiracy.

While the Supreme Court extended constitutional protections to cell phone searches, under current law, the government can look through emails, photographs, and other data stored on cloud servers without a warrant. Generation Opportunity's Wesley Coopersmith explains:

In today’s technologically driven world, there is little difference between physical documents and electronic documents. If you create or possess a physical document, the SEC and IRS must go to court and get a warrant from a judge to search your property. But if you create or possess an email, federal law enforcement can simply ignore the Fourth Amendment to the Constitution and take what they want.

The Supreme Court's ruling is a reminder that the law must adapt to changes in communications technology.

The Email Privacy Act, originally co-sponsored by Reps. Kevin Yoder (R-Kans.), Jared Polis (D-Colo.), and Tom Graves (R-GA) will rectify this by granting cloud-stored data the same constitutional protections as in the physical world. A majority of the House of Representatives are co-sponsoring this bill. It’s time for the House to bring federal law into the 21st Century by passing it.

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About the Author

About the Author

Sean Hackbarth
Senior Editor, Digital Content

Sean writes about public policies affecting businesses including energy, health care, and regulations. When not battling those making it harder for free enterprise to succeed, he raves about all things Wisconsin (his home state) and religiously follows the Green Bay Packers.