1. SCENARIO: The following article explores Fourth Amendment violations in current digital search practices, urging amendments to the outdated Electronic Communications Privacy Act (ECPA). It exposes covert government searches of digital data without targets' knowledge, raising constitutional concerns. Outdated ECPA rules fail to protect against extensive law enforcement access, particularly in cloud storage. The authors advocate for statutory reforms to align ECPA with constitutional rights, proposing stricter governance for stored communications searches and emphasizing the necessity of notice in digital searches. The goal is to safeguard digital civil liberties amid evolving technology and privacy threats. CLICK HERE FOR ARTICLE (opens in a new window)

QUESTIONS: Why do you believe there is a growing need for increased privacy protection on the internet? Look at recent examples and think about how laws and technology affect our privacy on the internet. What reasons can you give to support having more rules or tools to keep our online activities private? In what specific ways do you believe new laws addressing online privacy protection could benefit you personally? Make sure that you incorporate information from the article into your discussion.

Article

The strict notice requirement was part of Fourth Amendment doctrine fromthe beginning, but U.S. courts came to weaken the rule over time, ultimately creating a wide array of circumstances in which police could search citizens' property unannounced. During the 19th century, lower courts began recognizing exceptions to the notice requirement in exigent circumstances, such aswhen "imminent danger to human life" existedorwhen announcement might give a suspect "notice of his danger and an opportunity of effecting his escape."The Supreme Court first considered whether the Fourth Amendment's notice requirement had exceptions inKer v. California(1963), but no majority opinion emerged. Lower courts therefore continued tobespliton the question of whether the notice requirement was absolute until the Supreme Court revisited the issue three decades later.

Ultimately, inWilson v. Arkansas(1995)andRichards v. Wisconsin(1997), the Court reframed the knock-and-announce rule as merely one factor in determining whether a warrant was lawfully executed, rather than as an independent requirement.Richardsprovided the current standard for unannounced searches, holding that "[i]n order to justify a 'no-knock' entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence." The Court determined that this standard struck "the appropriate balance between the legitimate law enforcement concerns at issue in the execution of search warrants and the individual privacy interests affected by no-knock entries" that lower courts had grappled with since the 1820s.

Once again, though, we can see a legal framework (this time one of common law doctrine) that has not kept up with the times. The relaxation of the announcement rule was designed to combat dangers to officers that might arise when searching physical premises. Yet digital searches do not pose the same risks to officers as searches of physical propertythere is no occupant who might harm officers or escape. To be sure, suspects could still attempt to destroy evidence if notified before the investigation begins, though many cloud providers keep backups of data that their customers cannot themselves delete. Thus, there is no reason to prohibit notice to suspects immediately after the evidence from digital searches has been secured. Such a result would actually be consistent withRichards, which did not involve digital searches; it would require only a ruling that during digital searches, the dangersRichardscontemplated would not be present.

Extending such protections to digital searches would also align with a broaderand welcometrend in Fourth Amendment law taking the dangers of digital searches seriously. In recent cases likeUnited States v. Warshak(2010),Riley v. California(2014), andCarpenter v. United States(2018), the Supreme Court and lower federal courts have become increasingly committed to extending hard-won civil liberties protections against unreasonable searches and seizures into digital contexts. InRiley v. California, for example, the Supreme Court recognized how digital devices and the cloud are qualitatively and quantitatively different from physical searches in declining to extend the search-incident-to-arrest exception to the warrant requirement to searches of mobile phones. InCarpenter,itself an SCA case, the Court explained that it "has never held that the Government may subpoena third parties for records in which the suspect has a reasonable expectation of privacy." We believe that these cases yield the following conclusions: First, the Fourth Amendment applies strongly to digital contexts, particularly where there are records with close similarities to traditional forms of communication. Second, exceptions to the warrant requirement based on harm to officers or frustration of their purpose do not apply when searching digital data. BecauseRichardsrequires that officers executing a warrant either announce themselves or have a reasonable suspicion that they might be harmed or have their purpose frustrated, no warrant for a Section 2703(a) or 2703(b)(1)(A) search is proper without announcement.

Remedies

How, then, should we solve this problem? Fighting the growth of unannounced searches will require action by multiple branches of government. Courts should certainly rule that in criminal prosecutions, theRichardsexception to notice is simply inapplicable to digital searches because its rationale is absent. But such a solution would be incomplete. It is difficult to challenge secret searches unless the government brings criminal charges, since suspects are unlikely to otherwise learn of an unannounced search, even though their rights are violated when the search occurs. And as we've seen, the targets of secret digital searches are rarely charged with crimes. In addition, after the case ofHudson v. Michigan(2006),the exclusionary rule does not apply to violations of the announcement rule, suggesting that it might not apply to secret digital searches either. And even if a secret search were found to be unconstitutional, the evidence still would likely come in if officers could show good-faith reliance on the order. As we explain in our article, this means that to solve this growing constitutional problem, Congress must also revise the SCA to grant stored communications the full Wiretap Act-style protections described above. Ultimately, statutory reform of the ECPA and the SCA are the only way to fully protect digital civil liberties.

The ECPA governs much data about people's daily lives and communication. If law enforcement can routinely probe such information secretly, Fourth Amendment protections risk becoming a dead letter. Americans deserve certainty that authorities do not regularly monitor them without their knowledge. Today they lack this certainty. To regain it, policymakers must create a notice regime that reflects both the augmented threat to privacy harms and the diminished threat to officers during digital searches. People's civil liberties will increasingly depend on such a restoration of their ancient and hard-won rights.