California Bill, SB 467, Seeks Warrant Protection for Emails

The ACLU of California flags a bill here that has made it through the California legislature and is now awaiting the governor's signature.  The bill, SB 467, would give emails and online documents the same warrant protection as the content of letters.

The full text of the bill is available here. It is pretty long, but one of the more important sections seems to be the proposed amendment to Penal Code section 1524.4. The proposed amendment reads:

1524.4.
(a) A governmental entity shall not obtain from a provider of electronic communication services or remote computing services the contents of a wire or electronic communication that is stored, held, or maintained by that service provider without a valid search warrant issued by a duly authorized magistrate, with jurisdiction over the offense under investigation, using procedures established pursuant to this chapter.

I agree with the bill because I think that the content of emails should receive Fourth Amendment protection partly because the content of emails is analogous to the content of letters -- which receives Fourth Amendment protection -- and also for the reasons explained by Orin Kerr's analysis here, where he notes that even though the copy of an email received by somebody else may no longer be protected, this does not imply that the copy of the email on a third party server loses protection.

This bill would reject the Eleventh Circuit's approach in Rehberg v. Paulk, 598 F.3d 1268 (2010) which Kerr summarizes and criticizes here.  The bill would confirm the Sixth Circuit's approach in United States v. Warshak, 631 F.3d 266 (2010) which Kerr describes here.

The bill seems to be consistent with Ninth Circuit precedent on the issue. United States v. Forrester, 512 F.3d 500 (2007) stated in dicta that individuals' expectation of privacy in email contents was the same as their expectation of privacy in the contents of letters, but this statement was affirmed in a holding in the text-messaging context in Quon v. Arch Wireless Operating Co., Inc., 529 F.3d 892 (2008).

SB 467 seems to have had bipartisan support in the legislature, and it looks consistent with several circuits' precedent, including that of the Ninth Circuit.  Hopefully it ends up being signed into law.