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A Citizen Cross Examines Rep. Ted Poe On The Fourth Amendment

Rep. Ted Poe of Texas


October 7, 2015

The Honorable Ted Poe
2412 Rayburn Building
Washington, DC 20515                           

Re: Email Privacy Act, H.R. 699
Allows Warrantless Access to Emails

Dear Congressman Poe:

Here is some friendly constitutional conservative cross-examination to your October 6 op/ed at Fox News (“Your emails, photos and more deserve Fourth Amendment protections, too”) about H.R. 699, the so-called Email Privacy Act, and reforms to the Electronic Communications Privacy Act. You describe:

powers Congress and the American people never intended [government agencies] to have -- to read our personal communications without the constitutional protections of a search warrant. 

Whatever our other political disagreements, most Americans share the conviction that our privacy is protected by the Fourth Amendment, which prohibits “unreasonable searches and seizures” of our “persons, houses, papers and personal effects.”  (Sic: the Fourth Amendment does not state “personal” before “effects.”)

Government agents can’t raid our homes or tap our phones or read our mail without showing a judge they have probable cause to believe we’ve committed a crime and obtaining a search warrant. Why should our possessions and communications be less private online?

Yet, as I describe in my letter to your colleagues published at American Thinker:

H.R. 699 and S. 356 [the Email Privacy Act] actually authorize and encourage hundreds of federal and state agencies to violate the Fourth Amendment with respect to the actual content of private emails.

While purporting to require warrants signed by judges to search or seize emails from email storage systems, these bills actually expressly allow and give legislative imprimatur to federal and state agencies to issue judge-less administrative subpoenas to obtain private emails and content from individuals, businesses and nonprofit organization, i.e., every person and private entity in America except email storage providers.

Since you acknowledge that government agencies may not obtain our emails “without showing a judge they have probable cause to believe we’ve committed a crime and obtaining a search warrant,” then why would the legislation being pushed by Google and supported by so many members of Congress actually encourage government agencies to do precisely that?

As I further explain:

Administrative subpoenas are in fact institutionalized violations of the express and plainly written requirements of the Fourth Amendment:  (1) they are issued without probable cause, and (2) they are issued without oath and affirmation before neutral judges.  As Justice Sotomayor highlights in her recent opinion in City of Los Angeles v. Patel, the judicial standard of utter deference to administrative subpoenas makes it so improbable to enjoin them that few people even bother to try. * * *

Judge-less administrative subpoenas are now being used to obtain even confidential medical records.

Perhaps the best and most prescient opposition to administrative subpoenas was written by Justice Frank Murphy, an appointee of President Franklin D. Roosevelt, in his dissenting opinion in the 1946 Oklahoma Press Publishing case.  Quoting the Declaration of Independence, Justice Murphy noted how such methods of searches were so contrary to liberty and law that they previously contributed to "successful revolt.” 

Administrative subpoenas are relics of the Star Chamber, and are impossible to reconcile with the Fourth Amendment. The Email Privacy Act could have fixed the violations of the Fourth Amendment with respect to administrative subpoenas. Indeed, it could have at least caused less harm by remaining silent rather than giving congressional imprimatur to their use – in an “email privacy” bill, no less!

The Email Privacy Act, while doing some good, protects Google and other commercial email storage units, while leaving every American, every nonprofit organization, and every other business, both small and large, exposed to violations of Fourth Amendment rights in the “security” of electronic papers, records, pictures, and effects.

Now that members of Congress have acknowledged in a bipartisan way that they understand the proper Fourth Amendment requirement of judge-issued warrants after a showing of probable cause, how long will it be before they are consistent with regard to this Bill of Rights and the rule of law governing government?

                                                Very truly yours,

                                                Mark J. Fitzgibbons

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