If the government has complete and unfettered access to your online world, including your “cloud”, how can they use any evidence obtained from it to prosecute you in a court of law? If the police had access to your home without your knowledge, any evidence obtained there would not be allowed to be used, so what’s the difference? None, except there are laws governing law enforcement from unlawful search and seizure when it is your home. That’s why they need to get a court order to be able to search your premises. If the search is done illegally, the door is wide open for any decent defence attorney to make utter mincemeat out of the prosecution. But upon trying to answer my original question, I’ve learned the origins of the 4th amendment and how it has been interpreted and changed through the years.
Here is a link to the reference article that goes into great detail about the 4th amendment, but I took the liberty of snipping a very interesting few paragraphs that explain what has happened recently regarding the courts interpretation of it.
That is, the ”capacity to claim the protection of the Amendment depends not upon a property right in the invaded place but upon whether the area was one in which there was reasonable expectation of freedom from governmental intrusion.” 38
The two-part test that Justice Harlan suggested in Katz 39 has purported to guide the Court in its deliberations, but its consequences are unclear. On the one hand, there is no difference in result between many of the old cases premised on property concepts and more recent cases in which the reasonable expectation of privacy flows from ownership concepts. 40 On the other hand, many other cases have presented close questions that have sharply divided the Court. 41 The first element, the ”subjective expectation” of privacy, has largely dwindled as a viable standard, because, as Justice Harlan noted in a subsequent case, ”our expectations, and the risks we assume, are in large part reflections of laws that translate into rules the customs and values of the past and present.” 42 As for the second element, whether one has a ”legitimate” expectation of privacy that society finds ”reasonable” to recognize, the Court has said that ”[l]egitimation of expectations of privacy by law must have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.” 43 Thus, protection of the home is at the apex of Fourth Amendment coverage because of the right associated with ownership to exclude others; 44 but ownership of other things, i.e., automobiles, does not carry a similar high degree of protection. 45 That a person has taken normal precautions to maintain his privacy, that is, precautions customarily taken by those seeking to exclude others, is usually a significant factor in determining legitimacy of expectation. 46 Some expectations, the Court has held, are simply not those which society is prepared to accept. 47 While perhaps not clearly expressed in the opinions, what seems to have emerged is a balancing standard, which requires ”an assessing of the nature of a particular practice and the likely extent of its impact on the individual’s sense of security balanced against the utility of the conduct as a technique of law enforcement.” As the intrusions grow more extensive and significantly jeopardize the sense of security of the individual, greater restraint of police officers through the warrant requirement may be deemed necessary. 48 On the other hand, the Court’s solicitude for law enforcement objectives may tilt the balance in the other direction.
Application of this balancing test, because of the Court’s weighing in of law enforcement investigative needs 49 and the Court’s subjective evaluation of privacy needs, has led to the creation of a two-tier or sliding-tier scale of privacy interests. The privacy test was originally designed to permit a determination that a Fourth Amendment protected interest had been invaded. 50 If it had been, then ordinarily a warrant was required, subject only to the narrowly defined exceptions, and the scope of the search under those exceptions was ”strictly tied to and justified by the circumstances which rendered its initiation permissible.” 51 But the Court now uses the test to determine whether the interest invaded is important or persuasive enough so that a warrant is required to justify it; 52 if the individual has a lesser expectation of privacy, then the invasion may be justified, absent a warrant, by the reasonableness of the intrusion. 53 Exceptions to the warrant requirement are no longer evaluated solely by the justifications for the exception, e.g., exigent circumstances, and the scope of the search is no longer tied to and limited by the justification for the exception. 54 The result has been a considerable expansion, beyond what existed prior to Katz, of the power of police and other authorities to conduct searches.
So the Government is not allowed to tap your phone without a warrant, but the government claims the authority to read your emails without a warrant. The government can’t open your postal mail or seize papers from your home without a warrant, but it says it can read any private and sensitive documents you’ve stored in the Internet.
The government claims this authority to violate your privacy under a federal law called ECPA, the Electronic Communications Privacy Act. However, ECPA was written in 1986, before most people had computers, and before most people even knew what email was. So why hasn’t ECPA been updated? And what are the results of legislative inaction and/or incompetence, or is it nefarious? ECPA was interpreted to now to say that government agents can demand stored documents, even documents still in draft, without a judge’s approval.
Of course when you talk about ECPA or the 4th amendment, the government will within a nano second bring up how “everything’s changed since since 9/11.” They don’t want people to use encryption, the peoples privacy is of seemingly no concern. I remember a statement by a Google exec. answering criticism over the G-Mail scanning flap a couple of years ago, talking about how G-Mail customers shouldn’t expect privacy. I thought that was a very disturbing statement to make, and with such matter of fact. But now, understanding a little about how these laws are interpreted, Google was basically laying the groundwork for the government to claim what is reasonable privacy and what isn’t. If you shouldn’t expect your email to be private, the 4th amendment wouldn’t apply.
Compounding matters even more detrimentally is social sharing, one should not expect that their ‘About’ section in Facebook or Twitter to be private, nor should they think that their posted content is either. So maybe that’s the answer, the less privacy we expect to have online, the more our rights of privacy will be violated. Personally, I expect my online files, transactions etc. to be private, for my eyes only. But until the laws are changed, the government will use every opportunity to seize more power and turn our Bill of Rights on its head.