Jul 31, 2014 - 10:15am

Protecting Your Email from Warrantless Searches


Senior Editor, Digital Content


Brad Smith, Microsoft’s general counsel and executive vice president for legal and corporate affairs, writes in the Wall Street Journal [subscription required] about protecting against warrantless searches of electronic documents in the cloud:

Microsoft believes you own emails stored in the cloud, and that they have the same privacy protection as paper letters sent by mail. This means, in our view, that the U.S. government can obtain emails only subject to the full legal protections of the Constitution's Fourth Amendment. It means, in this case, that the U.S. government must have a warrant.

The government seeks to sidestep these rules, asserting that emails you store in the cloud cease to belong exclusively to you. In court filings, it argues that your emails become the business records of a cloud provider. Because business records have a lower level of legal protection, the government claims that it can use its broader authority to reach emails stored anywhere in the world.

Smith adds:

Microsoft believes the higher legal protection for personal conversations should be preserved for new forms of digital communication, such as emails or text and instant messaging.

And today, the company is going to court.

Last month, the Supreme Court extended constitutional protections to cell phone searches. However, under current law, that protection doesn’t extend to digital data like emails and photographs stored in the cloud.

The Email Privacy Act, co-sponsored by over half of the House of Representatives, would extend these constitutional protections to individuals’ data.

Federal law should be updated for the 21st Century.

Follow Sean Hackbarth on Twitter at @seanhackbarth and the U.S. Chamber at @uschamber.

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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.