ABA Family Legal Guide

Computer Law

Law Enforcement and the Computer

What about the Fourth Amendment?

This constitutional safeguard against unreasonable police searches and seizures is based in large part on an individual's "reasonable expectation of privacy." For example, a person's expectation of privacy is great when one is in his or her own home or on a private telephone call, so the police need to make an extra-strong showing to convince a neutral magistrate to issue a search warrant.

But courts are undecided on how much Fourth Amendment protection people have with regard to their e-mail conversations. A major sticking point is whether people communicating by e-mail have a reasonable expectation of privacy, considering that these messages are collected and held by service providers. In at least one case, the U.S. court of appeals upheld a lower court order allowing the police to seize an individual's e-mail records to search for evidence of a crime.