Document Type
Article
Abstract
As Justice Brandeis so eloquently argued more than a century ago in his classic privacy article, the progress of science, especially in the area of communication technology, made it imperative that we shift our attention from the letter to the spirit of law to protect the individual against the privacy invasions of modern inventions. The technological landscape continues to change at a much faster pace than constitutional law, which has yet to deal with such new contrivances of science as computer communications across telephone lines and electronic surveillance of the public by sophisticated devices that detect, monitor, and record personal information. The purpose of this Article is to explore and determine the constitutionality of electronic mail searching and scanning by government in light of recent Fourth Amendment rulings and trends.
Toward this end, I will begin by presenting some of the new modes of communication, and proceed to assess the constitutionality of the warrantless search and seizure of electronic mail. Since this issue has not been addressed by the U.S. Supreme Court yet, I will attempt to develop what is arguably a proper basis for constitutional analysis regarding this emerging area of Fourth Amendment search law by relying on federal and military court decisions as well as the valuable insights of respected commentators. I will also point out the situations in which Fifth Amendment issues could potentially arise. In conclusion, I will answer some hypothetical questions and propose some guidelines for determining when government action is unjustifiably intrusive, because what is constitutionally permissible may not necessarily be a good public policy.
Recommended Citation
Max Guirguis,
Electronic Mail Surveillance and the Reasonable Expectation of Privacy,
8 J. Tech. L. & Pol'y
(2003).
Available at: https://scholarship.law.ufl.edu/jtlp/vol8/iss2/2