Is your email safe from a warrantless seizure thereof by the federal government?
The Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probably cause.” U.S. Const. amend. IV.
Not all government actions are invasive enough to implicate the Fourth Amendment. Rather, an unreasonable search occurs when the government infringes upon an expectation of privacy that society is prepared to consider reasonable. Determining whether an unreasonable search has occurred depends on two discrete yet highly related inquiries. First, did the investigated party have a subjective expectation of privacy in the object of the challenged search? Second, is society willing to recognize that expectation as reasonable? Both of these questions must be answered in the affirmative.
Wednesday, February 9, 2011