What would you do if you were Jason Bourne — if you had the government scrutinizing everything you say, every move you make, meticulously cataloguing every person with whom you come into contact and carefully documenting their backstories, lifestyles, and mannerisms, all within a few minutes? Fortunately, the government can’t do that just yet. However, they can look into the personal information you put online, because the Fourth Amendment doesn’t necessarily forbid them from tracking your digital footprint without a valid search warrant.
The Fourth Amendment of the U.S. Constitution protects people from unreasonable search and seizure. Though it sets guidelines for searching people’s homes, schools, and cars, it says nothing about emails, cloud storage, and computers in general. Day by day, more and more of our information can be found online or at least on our computers. Since the Fourth Amendment doesn’t necessarily protect us in that regard, there’s not much standing in the way to stop marketers, researchers, law enforcement agencies, and the government from tracking your digital footprints. And the worst part is that probable cause isn’t even required.
This loophole is what the government exploits when looking into your digital footprint, according to David Cole, who teaches constitutional law at Georgetown University. Your emails are shared with your Internet provider; your web searches are shared with the web company in question; just carrying your cellphone around equates to you sharing your whereabouts with your cellphone company. Because the government officially recognizes these agencies as “third parties,” the Fourth Amendment no longer protects you in this regard. With just a subpoena, the government can access your name, address, and phone and Internet records, which means that, in extreme cases, it also includes information on how you pay your bills. In the worst case scenario, the government can even see your credit card and bank account numbers. Basically, because of a loophole in the Fourth Amendment, the government can obtain access to just about everything you want to keep safe.
To better understand the ramifications of this, here’s a quick explanation of subpoenas. According to Cornell University Law School, a subpoena is a written order for an individual to give testimony on a particular subject, and failure to comply may be punishable as contempt. Specifically, a subpoena duces tecum, what the government would need to legally be able to track your digital footprint, is a subpoena that forces individuals to produce documents pertinent to a proceeding. According to Lee Rosen of the Rosen Law Firm in Raleigh, N.C., this type of subpoena can be easily obtained from most private lawyers, who are considered to be “officers of the court.” On the other hand, a search warrant, which can only be obtained from a judge if there is probable cause, is not required.
A lot of us no longer store our files in a physical setting that would require the government to obtain a search warrant – so why are our files stored on our computers and on the internet any different? There is no excuse to not keep up with rapidly advancing technology, as the law already accommodates for telephones. According to the Center for Democracy and Technology, the Supreme Court ruled in 1967 that telephone conversations are protected by the Fourth Amendment and thus require the government to obtain a warrant before it can listen. Title III of the Omnibus Crime Control and Safe Streets Act of 1968 made it a crime to intercept telephone calls without a warrant from a judge. What we need is a similar act regarding the things we store online or on a computer.
If you equate your email address to your home address, and the various emails you’ve sent and received over the years to the various documents and papers you have lying around at home, then the government would be violating your Fourth Amendment rights by searching your emails without a valid warrant. But because of the loose definition of the term “third party,” to which email addresses and cloud storage apparently belong, the Fourth Amendment will not stop the government from reading our emails, and then we’ll all be one step closer to Jason Bourne status.