Texas Law Requiring Warrant for Law Enforcement to Access Email May Have Federal Counterpart

The Fourth Amendment’s guarantee of people’s right “to be secure in their persons, houses, papers, and effects” has gained new meanings as computer technology enables people to store their personal communications, such as email, on remote servers operated by third-party service providers. Courts have repeatedly had to consider whether data stored remotely remains “private” for the purposes of the Fourth Amendment. Federal law allows law enforcement to access emails and other remotely stored data without a warrant under certain circumstances. Texas became one of the first states to require a search warrant for such materials in 2013, and several other states have followed suit. In June 2016, the U.S. House of Representatives passed H.R. 699, the Email Privacy Act (EPA), which would apply the same restrictions as those found in Texas law. The bill is now pending in the Senate.

The Supreme Court, when determining whether police must obtain a warrant for certain types of materials or information, looks at whether a person has a reasonable expectation of privacy in that particular area. The “third-party doctrine” holds that a person has no reasonable expectation of privacy in materials that they have voluntarily given to a third party. See Smith v. Maryland, 442 U.S. 735 (1979). “Cloud computing,” which refers to the use of remote servers to store data, instead of local devices like personal computers or smartphones, has raised numerous questions and concerns regarding the third-party doctrine.

Most Supreme Court rulings on the third-party doctrine involve information given out once, such as the numbers of outgoing phone calls in Smith. Cloud computing, on the other hand, involves data that people store with the intention of accessing it repeatedly. Email service providers, for example, frequently offer remote hosting to consumers free of charge, allowing people to access their email from multiple devices and locations. This is not the same type of activity addressed in the most influential third-party doctrine court cases, all of which predate the widespread availability of cloud computing.

A bill passed by the Texas Legislature in 2013, H.B. 2268, amended state law to require a warrant in order to obtain “electronic customer data” from any “electronic communications” or “remote computing service” provider. Tex. Code. Crim. P. Art. 18.21(4). The amendment to H.R. 2268 that made this change shows that the law previously only required a warrant to access data that had “been in electronic storage for not longer than 180 days.” Emails and other data that were older than 180 days could be obtained with an administrative subpoena.

Federal law, through the Stored Communications Act (SCA), 18 U.S.C. § 2701 et seq., currently allows the government to access electronic communications without a warrant if they are older than 180 days. 18 U.S.C. § 2703. The EPA would change the SCA to require a warrant to access any electronic communication or remotely stored data. The House passed the bill on April 27, 2016, and it was received in the Senate the following day. It is still awaiting a referral to a committee.

These blog posts are meant to be illustrative only. Unless expressly stated to the contrary herein, these matters are not the result of any legal work of Michael J. Brown, but are used to communicate a particular point of view. Michael J. Brown does not claim credit for any legal work done by any lawyer or law firm either generally or specifically, with respect to the matters contained in this blog.

Criminal defense attorney Michael J. Brown has advocated for the rights of defendants facing criminal charges in west Texas state and federal courts since 1992. Contact us online or at (432) 687-5157 today to schedule a confidential consultation with a knowledgeable criminal justice advocate.

More Blog Posts:

Court Rules that State May Compel Fingerprint, but Not Passcode, Access to Cell Phone, Texas Criminal Lawyer Blog, January 8, 2015

Courts Rule on Issues of Data Privacy, with Important Implications for Electronic Monitoring and Searches, Texas Criminal Lawyer Blog, October 30, 2014

Microsoft Fights Search Warrant Seeking Email Data Stored on Overseas Servers, Texas Criminal Lawyer Blog, October 9, 2014

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