Last week, we filed an amicus brief in U.S. v. Wilson, a federal appellate case, in which we argued that email providers’ terms of service can’t limit your Fourth Amendment rights. This is the second brief we’ve filed in less than a year addressing this important point.
Email and other electronic communications can contain highly personal, intimate details of our lives. As one court noted, through emails, “[l]overs exchange sweet nothings, and businessmen swap ambitious plans, all with the click of a mouse button.” In an age where almost all of us now communicate via email, text, or some other messaging service, electronic communications are effectively no different from letters, which the Supreme Court held were protected by the Fourth Amendment way back in 1878.
At this point, almost all courts that have squarely addressed the issue have held the Fourth Amendment protects electronic communications from warrantless searches—even if you store your email with a third party service provider. And last summer, all nine justices on the Supreme Court agreed with this premise in United States v. Carpenter. However, in Wilson, the district court added a new wrinkle. It reasoned that the Fourth Amendment no longer applies once an email user violates a provider’s terms of service (TOS).
Background on the Case
It may seem difficult to conceive how an agreement with your email provider to deliver and store your emails could eviscerate your Fourth Amendment rights. But that’s what the district court decided in Wilson.
Google shut down Wilson’s email account after its automated anti-child pornography filters were triggered by four images attached to one of his emails. Following federal law, Google sent the images and information about Wilson’s account to the National Center for Missing and Exploited Children (NCMEC), which led to Wilson’s indictment on child pornography charges. When Wilson challenged the search, the district court opined that Google’s TOS—which notified Wilson that it could monitor his email and terminate his account for illegal conduct—nullified his Fourth Amendment rights once he sent the illegal images. Wilson appealed this order to the U.S. Court of Appeals for the Ninth Circuit.
The district court didn’t base its ultimate decision on its TOS analysis. Instead, it held that because Google had already “searched” Wilson’s email before it turned the images over to NCMEC, any follow-on government searches that didn’t expand on Google’s initial search were exempt from Fourth Amendment protection (under the “private search doctrine”).
However, we couldn’t let the district court’s dangerous analysis remain unchallenged, so we filed a brief in the Ninth Circuit to educate the appellate court about the perils of its approach to analyzing TOS agreements.
The District Court’s Logic Doesn’t Make Sense
The district court’s analysis is simply wrong. Under its logic, your Fourth Amendment rights rise or fall based on unilateral contracts with your service providers—contracts that all of us must agree to so that we can use services that are a necessary part of daily life, but contracts that almost none of us even read. As we argued in our brief, a company’s TOS should not dictate your constitutional rights, because terms of service are rules about the relationship between you and your email provider—not you and the government.
Companies draft terms of service to govern how their platforms may be used. Companies’ TOS control what kind of content you can post, how you can use the platform, and how platforms can protect themselves against fraud.
The terms of these contracts are extremely broad. Actions that could cause a provider to terminate your account for TOS violations include not just criminal activity, such as distributing child pornography, but also—as defined solely by the provider—actions like sending an email containing a racial epithet, sharing a news article with your team at work without permission from the copyright holder, or marketing your small business to all of your friends without their advance consent. While some might find activities such as these objectionable or annoying, they shouldn’t justify the government ignoring your Fourth Amendment right to privacy over your emails.
Given the vast amount of storage many email providers offer, most of us now hold onto email for years. Accounts can hold tens of thousands of private, personal messages, photos, and videos—each of which could reveal intimate details about our private and professional lives. And, given the convenience offered by commercial third party email providers, very few of us take the trouble to set up a private server to send, receive, and maintain these emails. This means the only way most of us can use email at all is by agreeing to these third party providers’ terms of service.
Last summer, all nine justices on the Supreme Court agreed that even if we store electronic communications with a third party provider, we still have Fourth Amendment-protected privacy interests in those communications. These constitutional rights would be meaningless, however, if they could be ignored simply because a user agreed to a company’s TOS, and then somehow violated that TOS.
The trial court’s ruling in Wilson allows private agreements to trump bedrock Fourth Amendment protections for private communications. The ruling affects far more than child pornography cases: anyone whose account was shut down for any violation of a TOS could lose Fourth Amendment protections over all the emails in their account.
The Ninth Circuit should reject such a sweeping invalidation of constitutional rights. We look forward to the court’s eventual decision, and will continue in the meantime to defend the important Carpenter decision, while working to extend its core holding to other contexts.
As Surveillance Litigation Director, Jennifer Lynch leads EFF’s legal work challenging government abuse of search and seizure technologies through the courts by filing lawsuits and amicus briefs in state and federal courts, including the U.S. Supreme Court, on important issues at the intersection of technology and privacy. Jennifer founded EFF’s Street Level Surveillance Project, which informs advocates, defense attorneys, and decisionmakers about new police tools, and in 2017, the First Amendment Coalition awarded her its Free Speech and Open Government Award for her work opening up public access to police surveillance records. Jennifer has written influential white papers on biometric data collection in immigrant communities and law enforcement use of face recognition. She speaks frequently at legal and technical conferences as well as to the general public on technologies like location tracking, biometrics, algorithmic decisionmaking, and AI, and has testified on facial recognition before committees in the Senate and House of Representatives. She is regularly consulted as an expert on these subjects and others by major and technical news media.