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Sen. Mike Lee's Email ‘Privacy’ Bill Won’t Stop Government Grabbing Your Emails

Senator Mike Lee

In February a coalition called Digital 4th commended the bipartisan introduction of the Electronic Communications Privacy Act Amendments Act of 2015, claiming the bill would update the Electronic Communications Privacy Act that allows government officials to get access to emails “without a warrant from a judge.”

Well, guess what? Under the proposed legislation, government officials can get access to emails without a warrant from a judge.

You can’t make this stuff up.

Here is my May 18 letter to Senator Mike Lee about S. 356 that explains this amazing fact that the bill touted as requiring judges to sign warrants before government may get our emails really does not, since government agencies may unilaterally issue their own warrants called “administrative subpoenas” without complying with the Fourth Amendment’s requirements.

The Honorable Mike Lee
361A Russell Senate Office Building
Washington, D.C. 20002

Re:  Electronic Communications Privacy Act Amendments Act of 2015

Dear Senator Lee:

The bill summary of S. 356, the Electronic Communications Privacy Act Amendments Act of 2015, reads in relevant part that it:

Requires the government to obtain a warrant from a court before requiring providers to disclose the content of such communications regardless of how long the communication has been held in electronic storage by an electronic communication service or whether the information is sought from an electronic communication service or a remote computing service.”

Section 3 of the actual text of the bill, however, allows for judgeless administrative subpoenas to obtain those emails, which are private property even if lacking some “privacy” because they are shared by private parties, but not the government.

So, the government really doesn’t need to obtain a warrant from a judge to obtain emails.  Instead, attorneys general and various state bureaucracies, plus the DEA, NSA, EPA, EEOC, SEC, FTC, etc. can issue their own judge-less warrants without oath and affirmation before a neutral judge or magistrate, and without probable cause, yet get our emails.

The Fourth Amendment is not just about preventing “general warrants,” of course.

A warrant for searches or seizures is a judicial act, wrote 17th century English jurist Matthew Hale in his History of Pleas of the Crown, first published in 1736 after his death.

In a confidential memo before the 1763 Wilkes trial of which you write brilliantly in your recent book, Chief Justice Pratt wrote to William Pitt that abolishing the Secretary of State warrants might cancel a weapon necessary to national security.  If compelled, Pratt warned, he would nevertheless rule on Secretary warrants, and that he would come out decisively against them. (Source:  William J. Cuddihy, THE FOURTH AMENDMENT: Origins and Original Meanings 602 - 1791.)

Chief Justice Pratt ruled that Lord Halifax’s warrants were “unconstitutional, illegal . . . absolutely void,” and wrote, “No precedents, no legal determinations, not an act of Parliament itself is sufficient to warrant any proceeding contrary to the spirit of the constitution.” He then struck down warrants issued by Secretary of State Lord Halifax, which were authorized by Parliament and had been used for 80 years.

Those were the precursors to today's judge-less administrative warrants, which too have been used for 80 years in violation of the separation of powers inherent in the Fourth Amendment, and in violation of the requirements of oath and affirmation, and probable cause.  Only judges may hear oaths necessary to issue warrants, which seemed clear to Sir Matthew Hale and Chief Justice Pratt, and thus was clear to the adopters of the Fourth Amendment.

Utah Attorney General Sean Reyes announced that his office would no longer issue these administrative subpoenas, saying, "The wholesale writing yourself a note to go after that stuff without any check is too dangerous and the potential for abuse becomes too dangerous."  He’s right; they are dangerous.

I applaud your steps to protect the Fourth Amendment, but I hope that you would act to abolish judge-less administrative subpoenas, and help Americans truly reclaim the Fourth Amendment.

With kind regards, I am

Very truly yours,

Mark J. Fitzgibbons

Please join Mark Fitzgibbons and sign our letter to Senator Lee urging him to change S. 356 to abolish judge-less administrative subpoenas that violate the letter and spirit of the 4th Amendment.

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