Current law allows the government to gain warrantless access to your emails that have been stored more than 180 days. That's bad — and even worse, the legislation now being pushed to plug this loophole has its own major loophole.
H.R. 699, "The Email Privacy Act," is being hailed by its sponsors in Congress and by privacy advocates as ensuring that government may access our emails only after "obtain[ing] a warrant from a judge by showing probable cause to believe a crime is being committed."
Reading the bill — perhaps a lost art on Capitol Hill — shows that it expressly exempts "the authority of a governmental entity to use an administrative subpoena authorized under a Federal or State statute" to obtain emails directly from individuals and businesses, meaning government bureaucrats may continue to bypass the judicial process — and the Fourth Amendment — to obtain emails without probable cause of a crime, just not from third-party Internet service providers.
Sponsors of its companion bill in the Senate, S. 356, engage in the same false advertising that our emails are safe from government procurement and inspection without a warrant signed by a judge.
Administrative subpoenas are judge-less warrants, issued unilaterally by executive or administrative officials without the "probable cause, supported by oath or affirmation" that neutral judges would otherwise require before the searches could be authorized. Administrative subpoenas are therefore institutionalized violations of the Fourth Amendment's protections of our security against unreasonable searches and seizures of our "papers and effects."
Because administrative subpoenas are used by bureaucrats like warrants, they are unlike, and serve different purposes from, grand jury or litigation subpoenas where there is judicial supervision.
The use of administrative subpoenas seems to grow every year. In a recent Supreme Court opinion declaring unconstitutional a Los Angeles ordinance authorizing warrantless police inspections of hotel guest registries, Justice Sonya Sotomayor's dicta encouraged use of administrative subpoenas as an alternative method of searching such records. She cited a Department of Justice report that identified "approximately 335 existing administrative subpoena authorities held by various [federal] executive branch entities."
Justice Sotomayor noted that "[administrative] subpoenas, which are typically a simple form, can be issued by the individual seeking the record—here, officers in the field—without probable cause that a regulation is being infringed," and admits to "the limited grounds on which a motion to quash [an administrative subpoena] can be granted." Her candor about the flimsiness of these judge-less warrants should make the privacy advocates praising The Email Privacy Act retract their support.
To paraphrase Utah Attorney General Sean Reyes, why would any government entity go to a judge for a warrant to obtain emails when it could essentially "write itself a note?"
Even the dreaded general warrants of the 18th century, whose evils inspired the Fourth Amendment, were issued by judges, not unilaterally by bureaucrats like present-day administrative subpoenas. They were "general warrants" not requiring oath about law being broken before being issued.
Administrative subpoenas bypass the requirements of oath and probable cause before a neutral judge. They are easily abused, since they violate the Fourth Amendment and its inherent separation of powers needed to prevent unreasonable searches. Even with the imprimatur of statutes and precedent, administrative subpoenas are every bit as destructive of the principles of liberty and law today as the Writs of Assistance were when James Otis argued in 1761.
The exemption in the email "privacy" bill simply encourages more laws giving more government entities administrative subpoena power. The Email Privacy Act is being sold to the public under pretense that it will require judge-issued warrants for people's emails. It simply isn't so because of this loophole.
Mark J. Fitzgibbons is co-author with Richard Viguerie of "The law that governs government." Thinking of submitting an op-ed to the Washington Examiner? Be sure to read our guidelines on submissions.