This week, the Senate Judiciary Committee held hearings on the ECPA Amendments Act (S. 356), that chamber’s version the Email Privacy Act (H.R. 699) over in the House.

These bipartisan bills are opposed by several federal agencies, indicating they do something right, and are supported by electronic privacy groups and several high-profile conservative organizations.

The gist of the bills is that they require government agencies to obtain warrants from judges to get emails from third-party internet storage providers.  This acknowledges the proper Fourth Amendment process protecting electronic “papers and effects.”

What’s left out of the marketing of these bills is the continued grotesque violations of the Fourth Amendment, as described in a letter I submitted to the committee, which follows:

With all the recent Fourth Amendment clamor from the media, privacy groups and even members of Congress about the blind, untargeted metadata collection by the NSA for national security reasons, it should shock the conscience of Americans that H.R. 699 and S. 356 actually authorize and encourage hundreds of federal and state agencies to violate the Fourth Amendment with respect to the actual content of private emails.

While purporting to require warrants signed by judges to search or seize emails from email storage systems, these bills actually expressly allow and give legislative imprimatur to federal and state agencies to issue judge-less administrative subpoenas to obtain private emails and content from individuals, businesses and nonprofit organization, i.e., every person and private entity in America except email storage providers.

What the NSA has been doing for national security purposes in blindly collecting metadata pales in comparison to encouraging hundreds, perhaps thousands, of federal and state agencies to collect and read the actual content of emails for far more mundane and non-exigent purposes than national security. 

This encourages the government to actually target minority groups, critics of government, practitioners of their religious beliefs, and others, thereby creating an environment to chill and even punish the exercise of First Amendment rights.[1]  This is arbitrary power run amok in violation of Americans’ most valued and sacred rights of security in their liberty, privacy and private property.

Administrative subpoenas are in fact institutionalized violations of the express and plainly written requirements of the Fourth Amendment:  (1) they are issued without probable cause, and (2) they are issued without oath and affirmation before neutral judges.  As Justice Sotomayor highlights in her recent opinion in City of Los Angeles v. Patel, the judicial standard of utter deference to administrative subpoenas makes it so improbable to enjoin them that few people even bother to try.[2]

As stated in Hale v. Henkel, a subpoena duces tecum is a warrant subject to the Fourth Amendment.[3]  Warrants are judicial acts, as explained by influential English jurist Sir Matthew Hale in his History of Pleas of the Crown first published in 1736 after his death.  Even H.R. 699 and S. 356 acknowledge this clear and fundamental Fourth Amendment and judicial principle by their very existence, yet still violate it by continued authorization (and encouragement!) of judge-less administrative subpoenas to search, seize and read emails from every person and private entity except through email storage units.

But every computer and nearly every cell phone of every American is a micro “email storage unit.”

Administrative subpoenas are irreconcilable with the Fourth Amendment, and as James Otis said in 1761 of the Writs of Assistance authorized by Parliament, “illegal.”  Their use for several decades makes them no less illegal.  Lord Camden (Justice Pratt) ruled against the general warrants issued by Secretary of State Lord Halifax in the famous Entick v. Carrington case.  Those administrative warrants were authorized by Parliament, and had been used for 80 years.  Lord Camden ruled that the warrants were “unconstitutional, illegal . . . absolutely void,” and wrote, “[n]o precedents, no legal determinations, not an act of Parliament itself is sufficient to warrant any proceeding contrary to the spirit of the constitution.”[4]

While federal and state statutes now authorize administrative subpoenas, Chief Justice John Marshall wrote in Marbury v. Madison, “Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature repugnant to the constitution is void.”[5]

In his famous dissent from Olmstead v. United States, Justice Brandeis wrote, "Ways may someday be developed by which the Government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home . . . .  'That places the liberty of every man in the hands of every petty officer' was said by James Otis of much lesser intrusions than these."[6]

Judge-less administrative subpoenas are now being used to obtain even confidential medical records.[7]

Perhaps the best and most prescient opposition to administrative subpoenas was written by Justice Frank Murphy, an appointee of President Franklin D. Roosevelt, in his dissenting opinion in the 1946 Oklahoma Press Publishing case.[8]  Quoting the Declaration of Independence, Justice Murphy noted how such methods of searches were so contrary to liberty and law that they previously contributed to "successful revolt.”  Wrote Justice Murphy:

It is not without difficulty that I dissent from a procedure the constitutionality of which has been established for many years. But I am unable to approve the use of nonjudicial subpoenas issued by administrative agents.

Administrative law has increased greatly in the past few years, and seems destined to be augmented even further in the future. But attending this growth should be a new and broader sense of responsibility on the part of administrative agencies and officials.

Excessive use or abuse of authority can not only destroy man's instinct for liberty, but will eventually undo the administrative processes themselves. Our history is not without a precedent of a successful revolt against a ruler who "sent hither swarms of officers to harass our people."

Perhaps we are too far removed from the experiences of the past to appreciate fully the consequences that may result from an irresponsible though well meaning use of the subpoena power.

To allow a nonjudicial officer, unarmed with judicial process, to demand the books and papers of an individual is an open invitation to abuse of that power. It is no answer that the individual may refuse to produce the material demanded. Many persons have yielded solely because of the air of authority with which the demand is made, a demand that cannot be enforced without subsequent judicial aid. Many invasions of private rights thus occur without the restraining hand of the judiciary ever intervening.

Only by confining the subpoena power exclusively to the judiciary can there be any insurance against this corrosion of liberty. Statutory enforcement would not thereby be made impossible. Indeed, it would be made easier. A people's desire to cooperate with the enforcement of a statute is in direct proportion to the respect for individual rights shown in the enforcement process.

Liberty is too priceless to be forfeited through the zeal of an administrative agent.

Emails must be considered “electronic” papers subject to Fourth Amendment protections every bit as much as Justice Brandeis predicted. The Fourth Amendment guarantees security, privacy and private property rights in all papers and effects.  It is time to eliminate judge-less administrative subpoenas.

 

[1] In Professor William Cuddihy’s treatise, The Fourth Amendment: Origins and Original Meaning 602 – 1791, he explains how abusive investigations against religious freedom in 16^th century England “awakened the movement for a right against unreasonable search and seizure.” Professor Cuddihy explains: “The most vigorous, far-reaching searches before 1642 aimed at persons and books that criticized the Crown or the established church . . . and evolved into a system that regulated many aspects of political as well as religious life.”

[2]  “Given the limited grounds on which a motion to quash [an administrative subpoena] can be granted, such challenges will likely be rare.”  Los Angeles v. Patel, 576 U.S. ___, slip opinion at 12 (2015).

[3] “We are also of opinion that an order for the production of books and papers may constitute an unreasonable search and seizure within the 4th Amendment. While a search ordinarily implies a quest by an officer of the law, and a seizure contemplates a forcible dispossession of the owner, still, as was held in the Boyd case, the substance of the offense is the compulsory production of private papers, whether under a search warrant or a subpoena duces tecum, against which the person, be he individual or corporation, is entitled to protection.”  Hale v. Henkel, 201 U.S. 43, 71 (1906).

[4] Entick v. Carrington, 19 How. St. Tr. 1029 (C.P. 1765).

[5] Marbury v. Madison, 5 U.S. 137, 177 (1803).

[6]  Olmstead v. United States, 277 U.S. 438, 474 (1928).

[7] “Furor Grows Over Feds Issuing Warrant-Less Subpoenas,” The Daily Caller, July 22, 2015,

http://dailycaller.com/2015/07/22/furor-grows-over-feds-issuing-warrant-less-subpoenas/.

[8] Oklahoma Press Publishing v. Walling, 327 U.S. 186, 218 - 219 (1946).