by Paul Overbee, UMN Law Student, MJLST Staff
In Volume 9, Issue 1 of the Minnesota Journal of Law, Science & Technology, Manish Kumar wrote a note titled Constitutionalizing E-Mail Privacy by Informational Access. The note used the reasoning of a Supreme Court case, Kyllo v. United States, to create a framework with which to analyze what constitutes a reasonable expectation of privacy in terms of an individual’s e-mails. The test identified by Kumar was to ask whether the government has to employ special means not available to the public to access any allegedly private information. If the government is employing special means in the course of a search, then that search is subject to Fourth Amendment protections. The note continued by using that rationale as one way to assess e-mail privacy.
Legal inquiries such as those presented in Kumar’s note are now receiving greater attention since the recent events involving Edward Snowden. Edward Snowden, a former National Security Agency employee, was involved in leaking documents that have detailed many of the National Security Agency’s global surveillance practices. One aspect of these leaks detailed how the National Security Agency requires cell phone companies such as Verizon to collect metadata for all telephone conversations involving individuals from the United States. Since these metadata collections were made public, a number of lawsuits have challenged the constitutionality of the procedure as an unreasonable search and seizure under the Fourth Amendment.
This Fourth Amendment question has been dealt with in two distinct manners, each of which brings a separate conclusion. Judge Richard Leon of the U.S. District Court for the District of Colombia found that the technology used in gathering the metadata employed a special means not available to the public and thus constituted an unconstitutional search and seizure. Alternatively, Judge William Pauley III of the Southern District of New York found that these methods to do not implicate the Fourth Amendment.
This issue has already caught the attention of the general public, and it is no stretch to expect the Supreme Court to eventually hear these cases. The Pauley opinion and the Leon opinion both provide a good overview of the arguments available for both sides of the issue. Additionally, the court may look to the test from Kyllo v. United States to further guide their opinion.
