S. 356, the Electronic Communications Act Privacy Act Amendments Act of 2015, starts out well but ends badly.  S. 356 is purportedly written to cure a defect in existing law that government may access our e-mails that are 18 months or older without a warrant from a judge.  That's a little bit of bait and switch, though, since the bill authorizes government agencies to skip the requirement of going to a judge by unilaterally issuing judge-less warrants.

The bill claims that it protects privacy, which is all well and good.  E-mails, though, are private property even if held in the cloud.  The Fourth Amendment expressly protects private property and requires government to show probable cause under oath and affirmation to a neutral judge before it may search or seize private property.  Our privacy is protected when government may not search or seize our private property without a judge-issued warrant, which may be issued only upon solid grounds that a law may have been broken.

Here is my May 18 letter to Senator Mike Lee about S. 356 explaining why it misses the boat.

The Honorable Mike Lee

361A Russell Senate Office Building

Washington, D.C. 20002

Re:  Electronic Communications Privacy Act Amendments Act of 2015

Dear Senator Lee:

The bill summary of S. 356, the Electronic Communications Privacy Act Amendments Act of 2015, reads in relevant part that it:

“Requires the government to obtain a warrant from a court before requiring providers to disclose the content of such communications regardless of how long the communication has been held in electronic storage by an electronic communication service or whether the information is sought from an electronic communication service or a remote computing service.”

Section 3 of the actual text of the bill, however, allows for judgeless administrative subpoenas to obtain those emails, which are private property even if lacking some “privacy” because they are shared by private parties, but not the government.

So, the government really doesn’t need to obtain a warrant from a judge to obtain emails.  Instead, attorneys general and various state bureaucracies, plus the DEA, NSA, EPA, EEOC, SEC, FTC, etc. can issue their own judge-less warrants without oath and affirmation before a neutral judge or magistrate, and without probable cause, yet get our emails.

The Fourth Amendment is not just about preventing “general warrants,” of course.

A warrant for searches or seizures is a judicial act, wrote 17th century English jurist Matthew Hale in his History of Pleas of the Crown, first published in 1736 after his death.

In a confidential memo before the 1763 Wilkes trial of which you write brilliantly in your recent book, Chief Justice Pratt wrote to William Pitt that abolishing the Secretary of State warrants might cancel a weapon necessary to national security.  If compelled, Pratt warned, he would nevertheless rule on Secretary warrants, and that he would come out decisively against them. (Source:  William J. Cuddihy, THE FOURTH AMENDMENT: Origins and Original Meanings 602 - 1791.)

Chief Justice Pratt ruled that Lord Halifax’s warrants were “unconstitutional, illegal . . . absolutely void,” and wrote, “No precedents, no legal determinations, not an act of Parliament itself is sufficient to warrant any proceeding contrary to the spirit of the constitution.” He then struck down warrants issued by Secretary of State Lord Halifax, which were authorized by Parliament and had been used for 80 years.

Those were the precursors to today's judge-less administrative warrants, which too have been used for 80 years in violation of the separation of powers inherent in the Fourth Amendment, and in violation of the requirements of oath and affirmation, and probable cause.  Only judges may hear oaths necessary to issue warrants, which seemed clear to Sir Matthew Hale and Chief Justice Pratt, and thus was clear to the adopters of the Fourth Amendment.

Utah Attorney General Sean Reyes announced that his office would no longer issue these administrative subpoenas, saying, "The wholesale writing yourself a note to go after that stuff without any check is too dangerous and the potential for abuse becomes too dangerous."  He’s right; they are dangerous.

I applaud your steps to protect the Fourth Amendment, but I hope that you would act to abolish judge-less administrative subpoenas, and help Americans truly reclaim the Fourth Amendment.

With kind regards, I am

Very truly yours,

Mark J. Fitzgibbons