Brief: Fourth Amendment Protections Should Apply When Data Is Seized

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.