March 15, 2018

Wyden, Paul Ask DOJ to Clarify Protection of Email Communications under Fourth Amendment

Washington, D.C. – U.S. Sens. Ron Wyden, D-Ore., and Rand Paul, R-Ky., this week asked the Department of Justice to clarify whether they believe that an individual’s emails are protected from warrantless government searches under the Fourth Amendment.

The Fourth Amendment protects Americans against warrantless search and seizure by the government. The Department of Justice has long taken the position that these protections do not extend to electronic communications stored in the cloud, leaving Americans’ emails vulnerable to warrantless searches.

“The American people deserve to know if the Justice Department is going to defend and enforce protections under the Fourth Amendment that unquestionably apply to their online communications,” Wyden said. “It’s time for the government to provide answers about whether they will continue to prioritize their political agenda over the constitutional rights of Americans.”

“The Fourth Amendment stands as a shield that protects Americans from the government invading their private lives,” Paul said. “Americans deserve for these protections to extend to their emails and information stored in the cloud, and we are simply asking the Department of Justice in this letter to confirm what they have alluded to in court: that Americans have a reasonable expectation of privacy in this content, and it is protected by the Fourth Amendment.”

Since 2013, Google, Microsoft, Yahoo and Facebook have all insisted on a warrant before disclosing the contents of their customers’ email communications. The Department of Justice has yet to challenge the position taken by these companies, and at an oral argument before the Supreme Court last November, a senior Department of Justice official seemed to acknowledge that the Fourth Amendment does in fact apply to email communications, indicating that the Department has adopted a new position on this issue.

Specifically, Wyden and Paul asked:

  1. Is it now the policy of the Department of Justice that email content is protected by the Fourth Amendment even when an internet service provider or email provider would be able to access that content while providing communications service? If that is not the policy of the Department, do you intend to correct the record for the Supreme Court?
  2. If the Department takes the position that the Fourth Amendment protects the content of emails, does it also believe this protection extends to other data stored in the cloud, such as photographs, personal documents, and other records? If not, why?

Read the full letter here.

As a senior member of the Senate Intelligence Committee, Wyden has been a strong advocate for privacy, pushing back on the overreach of the federal government on warrantless surveillance of Americans.