There's been a lot of buzz around the internet about a district court decision that clarifies how the Fourth Amendment relates to cloud computing, in other words, the procedures the government has to follow to search files you leave on a third party server.
To understand the decision and its implications, we asked Orin S. Kerr, professor of law at George Washington University Law School, a few questions.
In a nutshell, what does the opinion say?
The opinion says that when the government gets a search warrant for an e-mail account, the government has to notify the ISP but not the account holder.
One of the parts that I found interesting was the metaphor District Judge Michael Mosman uses. He writes, "If a suspect leaves private documents at his mother's house and the police obtain a warrant to search his mother's house, they need only provide a copy of the warrant and a receipt to the mother, even though she is not the 'owner' of the documents."
As I read it, it means that a service like GMail is like the mother's house - that anything in Google Docs is fair game, that you don't need to be notified if Google's been notified.
In an online world that is increasingly moving toward so-called cloud computing, this seems huge. Is it?
No, it is not huge. It's a pretty minor decision, and it's not surprising: Federal law has stated since 1986 that the government can get e-mail with a warrant but does not need to notify the account holder.
So this is a pretty narrow decision? Are you saying this applies to e-mail but not to files and pictures and videos and other assets we customarily leave on third-party "premises?"
The reasoning seems to apply broadly but the truth is that we do not know. This decision is not binding on anyone: It is the decision of a single judge, and other judges are not bound by its reasoning or conclusion.
Oh, and I should add that it is not settled that the government actually needs a warrant to obtain e-mail: That is a bit of an open question.
Tell me more about that.
The 1986 statute that governs e-mail privacy required the government to get a warrant in some circumstances but not others: In those other circumstances it could compel contents from the ISP with only a subpoena or court order that did not require probable cause. It is unclear whether that statute is constitutional.
So what kind of impact can a ruling like this have on our regular lives?
I don't think it can have much impact, as it reflects preexisting practice.
I think lawyers and judges consider this settled... But I think most regular people see e-mail like they see objects in the physical world, objects in their house. They consider that government should treat e-mail the same way. This idea that government notifies your internet service provider but not you to search your e-mail sounds like a crazy concept. But if this notion has been around so long, why hasn't it seeped into the minds of regular folk?
You suggest that regular folks think that when the government gets warrants to search their e-mail accounts, the government notifies them. Unlike you, I am not sure what regular people think about this: It's beyond the experience of most people. Or so I would guess.
On your own blog, the discussion is pretty great. Someone put forth a solution, or rather a way to protect yourself against this kind of search. They, in essence, said encrypt everything and you'll be fine. Any thoughts on that?
It depends what you mean. If you're me asking whether encryption is a useful tool to protect your privacy regardless of the law, then yes, it is. On the other hand, if you're asking for my advice to those who are storing evidence of their crimes in their e-mail accounts, and they are worried about the government getting search warrants based on probable cause to search their accounts for the evidence of your crime, then I suppose my first recommendation to them would be to not commit the crimes in the first place.