The Brennan Center for Justice, The Constitution Project, the Electronic Frontier Foundation, and the American Civil Liberties Union jointly filed a brief in this digital privacy case. O’Melveny & Myers LLP served as pro bono counsel.
The Fourth Amendment protects digital data the moment it is copied and seized by law enforcement, not just when it is searched, the Brennan Center for Justice at NYU School of Law and others argued in an amicus brief filed this week.
In the “Microsoft Ireland” case, the Second Circuit Court of Appeals will decide whether the US-based Microsoft Corporation must comply with a government warrant to turn over the digital records of an individual stored on servers outside the United States. The government contends that the Fourth Amendment does not apply to copying data, only to searching it. In its brief, the Brennan Center and its partners hold that copying data constitutes “seizure” and warrants Fourth Amendment protection.
“This case could have far-reaching consequences for the future of digital privacy, including tech companies’ ability to protect the privacy of their customers’ personal information,” said Michael Price, counsel at the Brennan Center for Justice. “If the court accepts the government’s argument that Fourth Amendment protections only apply when data is searched rather than when it is physically collected, police would be allowed to copy every single file on every single American’s computer without a warrant.”
“As we develop new rules for the digital world, we must remain true to the principles reflected in the Constitution,” said Faiza Patel, co-director of the Liberty and National Security Program at the Brennan Center for Justice. “The personal information stored in our e-mail accounts is not a Microsoft business record that the government can get with a subpoena — they need a warrant.”
The brief also argues against the government’s position that a domestic warrant can be used to search and seize email because it is similar to a subpoena. While a subpoena can be used to obtain certain business records, it is not sufficient to obtain the e-mails, photos, and chat messages that are stored on the cloud.
To learn more about this case, visit the Brennan Center’s case page here.
Help us Prepare for Trump’s Day One
Trump is busy getting ready for Day One of his presidency – but so is Truthout.
Trump has made it no secret that he is planning a demolition-style attack on both specific communities and democracy as a whole, beginning on his first day in office. With over 25 executive orders and directives queued up for January 20, he’s promised to “launch the largest deportation program in American history,” roll back anti-discrimination protections for transgender students, and implement a “drill, drill, drill” approach to ramp up oil and gas extraction.
Organizations like Truthout are also being threatened by legislation like HR 9495, the “nonprofit killer bill” that would allow the Treasury Secretary to declare any nonprofit a “terrorist-supporting organization” and strip its tax-exempt status without due process. Progressive media like Truthout that has courageously focused on reporting on Israel’s genocide in Gaza are in the bill’s crosshairs.
As journalists, we have a responsibility to look at hard realities and communicate them to you. We hope that you, like us, can use this information to prepare for what’s to come.
And if you feel uncertain about what to do in the face of a second Trump administration, we invite you to be an indispensable part of Truthout’s preparations.
In addition to covering the widespread onslaught of draconian policy, we’re shoring up our resources for what might come next for progressive media: bad-faith lawsuits from far-right ghouls, legislation that seeks to strip us of our ability to receive tax-deductible donations, and further throttling of our reach on social media platforms owned by Trump’s sycophants.
We’re preparing right now for Trump’s Day One: building a brave coalition of movement media; reaching out to the activists, academics, and thinkers we trust to shine a light on the inner workings of authoritarianism; and planning to use journalism as a tool to equip movements to protect the people, lands, and principles most vulnerable to Trump’s destruction.
We’re asking all of our readers to start a monthly donation or make a one-time donation – as a commitment to stand with us on day one of Trump’s presidency, and every day after that, as we produce journalism that combats authoritarianism, censorship, injustice, and misinformation. You’re an essential part of our future – please join the movement by making a tax-deductible donation today.
If you have the means to make a substantial gift, please dig deep during this critical time!
With gratitude and resolve,
Maya, Negin, Saima, and Ziggy