Difficulty with Reconciling the Fourth Amendment and Social Media.
In a November 29, 2012 New York Times article entitled Panel Approves a Bill to Safeguard E-Mail, Charlie Savage details a bill passed by the Senate Judiciary Committee which would require a warrant in most cases where the government seeks e-mail from internet service providers. Currently the government is able to obtain e-mail either by warrant or subpoena. The government’s choice is dictated by the Stored Communications Act and series of court decisions which have interpreted it. Savage indicates that the bill is not expected to make it through Congress in 2012, instead the bill would be subject to negotiations during 2013. The sponsor of the bill, Senator Patrick Leahy argues that e-mails stored by third parties should be afforded the same protection as papers stored inside of an individual’s home. According to Senator Leahy, an architect of the Stored Communications Act, as technology changes the law which protect privacy must also change.
In a December 26, 2012 Huffington Post story entitled Netflix Social Sharing Bill Passes Without Email Privacy Protection, the writer, referring to the bill sponsored by Senator Leahy, points out how Congress passed the “Netflix amendment” to the Video Protection Act, but dropped the e-mail privacy provision. In the article the writer argues that the failure to include the privacy provision leaves the Stored Communications Act intact, making it relatively easy for law enforcement officers to gain access to open stored e-mail. The author of the article seems to suggest that Congress’s failure to pass the bill, put the interest of Facebook users who want to share a “Michael Bay movie marathon” with their friends over the privacy rights of everyone.
There is no argument that our privacy rights deserve protection. Under the Fourth Amendment a person has a right to be secure in their houses, papers and effects, against unreasonable search and seizure. In Justice Harlan’s concurring opinion in Katz v. United States, a test for the reasonable expectation of privacy was developed. The “Katz Expectation of Privacy Test” considers whether (1) the individual subjectively by his conduct has “exhibited an actual expectation of privacy” and (2) whether the individuals subjective of privacy is “reasonable” from an objective view.
Most people would agree that ensuring Fourth Amendment protections is more important than a bill which enables Netflix users to share a “Michael Bay movie marathon” with everyone on Facebook. However, applying the “Katz Expectation of Privacy Test” to contemporary social media may not be as simple as it appears. Since the enactment of the Stored Communications Act, the courts have been able to apply the original language of the Act with constantly evolving technology. In some of the cases the court has held that the individual exhibited an actual expectation of privacy but that the expectation was not reasonable from an objective view, while other courts have held the opposite view. Irrespective of how the courts have decided, many of them struggled, albeit successfully, with reconciling the Fourth Amendment with social media.
As a result of these court decisions, law enforcement and prosecutors have developed guidelines which ensure their actions are in accordance with the Stored Communications Act and judicial precedent. Despite Congresses inability to pass the 2012 e-mail privacy provision, it is hard to imagine that members of Congress are more concerned about a Michael Bay movie marathon than they are about our Fourth Amendment rights. Even if the unimaginable were true and Congress was indifferent to our rights, the courts will continue to determine if there is a reasonable expectation of privacy. Nevertheless, one can assume that Congress may be having the same difficulty reconciling the right of privacy to the ever changing world of social media.