Fourth Amendment

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The dream of hack-proof communication just got a little closer to reality. On August 16, 2016, China launched the world’s first “quantum satellite,” a project the Chinese government hopes will enable it to build a communication system incapable of being hacked. Such a system, if perfected, would allow for encrypted communications between any two devices with absolute certainty that the encryption could not be broken, and with a built-in mechanism for alerting the sender/receiver if someone tried.

The average American today generates more media than they did at any other point in history, and the ease with which our communications, photos, and videos are sent and stored digitally means most of us have more media stored in the cloud or on a single digital device than previous generations would have created in an entire lifetime. However, even as the amount of media we create and store has increased, the laws governing its search and seizure have failed to keep up. Under federal law and the laws of most states, the same information may be subject to different levels of protection from government authorities depending on whether that information is in the form of an e-mail stored in the cloud or a letter stored in a desk drawer.

California is attempting to change that equation. On October 8, 2015, Governor Jerry Brown signed into law the California Electronic Communications Privacy Act (CalECPA, SB 178), a sweeping bill

On Monday, the California Supreme Court ruled that the Fourth Amendment to the United States Constitution did not prohibit a deputy sheriff from conducting a warrantless, post-arrest search of the text messages of an arrestee. Specifically, the Court affirmed the decision of the Court of Appeal that the cell phone was “immediately associated with [defendant’s] person at the time of his arrest” and was therefore “properly subjected to a delayed warrantless search.” 

In People v. Diaz, filed on January 3, the Court considered whether the trial court properly denied Diaz’s motion to suppress evidence gathered during a search of his cell phone, which occurred approximately 90 minutes after he was arrested for being a coconspirator in the sale of drugs. Diaz denied knowledge of the sales. A deputy sheriff accessed Diaz’s cell phone, which had been seized from Diaz’s person, and found a coded text message that, based on the deputy’s training and experience, indicated Diaz knew of the transaction.

The California Supreme Court’s ruling hinged on its finding that the cell phone “was an item [of personal property] on [defendant’s] person at the time of his arrest and during the administrative processing at the police station.” People v. Diaz, S1666000, slip op. Majority Op. at 8 (Cal. Jan. 1, 2011). As such, the case was controlled by the United States Supreme Court’s holdings in United States v. Edwards, 415 U.S. 800, 802-803 (1974) and United States v. Robinson, 414 U.S. 218, 224 (1973), in which the High Court affirmed seizures of paint chips from clothing and a cigarette package containing heroin from a coat pocket (respectively).

In an important decision for employers, the U.S. Supreme Court unanimously overturned a decision by the U.S. Court of Appeals for the Ninth Circuit in a case involving an employee’s assertion that a government employer had violated the Fourth Amendment by unreasonably obtaining and reviewing personal text messages sent and received on employer-issued pagers. The decision, a victory for employers, provides helpful guidance for management of electronic communication systems and workplace searches. Read this alert to learn more about the decision and how it may affect you.
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On Tuesday, the Ninth Circuit denied rehearing en banc in Quon v. Arch Wireless, previously discussed here. The dissent (1) disagrees with the panel’s conclusion that the SWAT team members had a reasonable expectation of privacy in the text messages on the grounds that the decision undermines the standard established by the Supreme Court in O’Connor v. Ortega, 480 U.S. 709 (1987); and (2) finds that the method used by the panel to determine whether the search was reasonable conflicts with Supreme Court precedent holding that the Fourth Amendment does not require the government to use the “least intrusive means” when conducting a “special needs” search. The dissent can be found here. Judge Wardlaw’s concurrence in the denial of rehearing en banc can be found here. We will keep you posted on this one.
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In a novel case, the Ninth Circuit ruled on July 6, as amended July 25, that government surveillance of Internet Protocol (“IP”) addresses visited, to/from addresses of emails, and the total volume of information sent to or from an email account does not violate the Fourth Amendment. United States v. Forrester, No. 05-50410, — F.3d — (9th Cir. July 6, 2007). The ruling does not affect the requirement that the government obtain a search warrant before searching the actual content of that Internet traffic.

The defendant in United States v. Forrester, Dennis Louis Alba, was charged and convicted of various federal offenses relating to the operation of an Ecstasy-manufacturing laboratory. During the government’s investigation of Alba, it installed a device on Alba’s computer that gathered the IP addresses of the websites he visited, the to/from addresses of his emails, and the total volume of information sent to or from his email account. In his appeal, Alba contended that the surveillance constituted a warrantless search in violation of the Fourth Amendment and fell outside of the then-applicable pen register statute. The Ninth Circuit addressed the merits of Alba’s first contention, but found it unnecessary to address the second.

The Ninth Circuit applied the Supreme Court’s analysis in Smith v. Maryland, 442 U.S. 735 (1979), in which the Court held that a pen register does not constitute a Fourth Amendment search. The Court so held because pen registers merely track phone numbers dialed and do not reveal the actual contents of conversations. Cf. Katz v. United States, 289 U.S. 347 (1967) (holding that one can have legitimate expectation of privacy in the contents of one’s phone conversations).  The Ninth Circuit reasoned that the government’s surveillance of Alba’s activity was “constitutionally indistinguishable” from surveillance via a pen register because accessing IP addresses involves the transmission and receipt of a unique identifier, which does not reveal actual content, via the third-party equipment of an internet service provider.  An Internet user therefore does not have a legitimate expectation of privacy in the IP addresses he or she accesses.

In a decision that will significantly impact the ability of the government to access electronic communications, the United States Court of Appeals for the Sixth Circuit on June 18, 2007, affirmed a district court’s issuance of a preliminary injunction prohibiting governmental entities from obtaining Internet Service Providers’ (“ISP”) subscribers’ e-mail communications unless the subscriber first receives prior notice and an opportunity to be heard.  Warshak v. United States, No. 06-4092 (6th Cir. 2007). The Court found unconstitutional the Stored Communications Act (“SCA”) provisions allowing Government seizure of such communications without prior subscriber notice, because the court order could be issued without a showing of probable cause that the subscriber had committed a crime. The Sixth Circuit found that individuals have an expectation of privacy regarding the contents of emails sent or stored through an Internet Service Provider (ISP).