• by Ray Schultz , Columnist, February 26, 2019

Are our emails safe from a prying government? The American Civil Liberties Union and the ACLU Alaska Foundation fear they are not.

Last week, they filed a friend-of-the court brief with the Ninth Circuit Court of Appeals, arguing that a little-known loophole in the Stored Communications Act (SCA) allows email seizures that violate the Fourth Amendment.

Section 2703(f) of the SCA authorizes law enforcement to “seize emails — private property — far beyond what the Fourth Amendment allows,” the ACLU contends.

Specifically, it allows seizure of information for “up to 180 days without judicial oversight,” it adds.

The filing involves the case of Kaleb Basey, who is certainly not a good poster child for this cause, or any other: He was being investigated for receiving and distributing child pornography and enticing a minor.

Still, the 2014 case illustrates how government can force email service providers to retain private emails for long periods of time simply by telling them to do so.

Officials seized Basey’s electronic devices, and a month later demanded that Yahoo preserve his email account for 90 days, a routine procedure.

“ In practice, investigators issue tens or hundreds of thousands of boilerplate preservation demands under section 2703(f) each year — and often never return for additional legal process,” according to the filing.

However, law enforcement failed to examine Basey’s emails for nine months, at which point the FBI obtained a warrant to do so, and found “the evidence used to convict him in this case,” the ACLU charges.  

Why should anyone care about this?

Because these actions interfered with “an individual’s powerful constitutional interest in these private and personal digital papers,” the ALCU contends. They are performed without a warrant or probable cause, nor with any risk of evidence being destroyed.

Thus, they are unconstitutional, the ACLU argues.

Then there is the all-powerful reach of the big tech companies.

In effect, Yahoo “acted as a governmental agent” because of retained the emails not for its own purposes, but to comply with the investigators’ demands. As such, it was subject to Fourth Amendment constraints.

Strangely, it isn’t clear if the section permits the grabbing of “the content of communications at all,” the ACLU acknowledges.

The ACLU doesn't seem to be asking that Basey be sprung from jail—simply that the court declare that the seizure of his emails violated the Fourth Amendment. What would happen next is unclear.

It also states that Congress could resolve the issue by passing a statute that would allow investigators “to make preservation demands if investigators have probable cause, are in the process of seeking a warrant, and there is a risk of spoliation.”

That would be a good start.