No. 20-1204
In the Supreme Court of the United States
MARK RINGLAND, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.
On Petition for Writ of Certiorari to the United States Court of Appeals for the Eighth Circuit
Brief Amicus Curiae Of The DKT Liberty Project, Reason Foundation, and Due Process Institute as Amici Curiae
In Support Of Petitioner
Access to an email account is rapidly becoming essential in today’s interconnected world. Communications—and storage of personal documents—via email have become ubiquitous. Americans use their email accounts to carry out essential tasks in their day-to-day lives, like communicating with loved ones, working with colleagues, collaborating with fellow students and teachers, making appointments with physicians and therapists, and so much more. Email has become even more important during the COVID-19 pandemic as virtual connections have become the norm. Even the most basic tasks can require—or at least can be made easier by—email.
Like many Americans, and many internet users worldwide, petitioner Mark Ringland registered for and used Gmail addresses to send and receive emails. Through the use of “hashing,” Google flagged possible illegal content in one of Mr. Ringland’s email accounts. Google reviewed a subset of Mr. Ringland’s emails, and then sent a larger set—including that reviewed subset— to the National Center for Missing and Exploited Children. Ultimately the emails were sent to state law enforcement, which—without obtaining a warrant—accessed and reviewed the files Google had transmitted. Based on that review, an investigator ultimately obtained a warrant to search Mr. Ringland’s relevant email account. This same process then happened a second time, that time related to material from another of Mr. Ringland’s accounts. After being charged, Mr. Ringland challenged the searches of the emails sent from Google, alleging that he had a reasonable expectation of privacy in his personal emails and that the search constituted a trespass. The district court and the Eighth Circuit upheld the searches under the private-search doctrine announced by this Court in United States v. Jacobsen, 466 U.S. 109 (1984); neither court addressed Mr. Ringland’s trespass argument.
The decisions below were wrong to rely on the private-search doctrine without even considering whether the searches were a trespass. The private-search doctrine is insufficiently protective of Fourth Amendment interests, particularly when extended uncritically to digital media like emails. The emails of today are nothing like the letters of yesteryear, in capability, content, or size. Yet the courts below and courts across the country have rotely applied the private-search doctrine to email searches such as the one at issue here as if emails were equivalent to letters or documents in a cardboard box, without even considering the traditional understanding of the Fourth Amendment and the limits on its exceptions. Simply put, the private-search doctrine does not appropriately safeguard the Fourth Amendment interests at issue when the search involves digital mediums like email accounts given the vast array of intimate details that can be learned about a person from the information accessible on her email account—personal communications, health information, education-related information, and financial statements, to name a few.
Instead, the traditional property-based understanding of the Fourth Amendment, which is grounded in whether the search was a trespass, is best equipped to handle searches of email. Unlike the scenario presented in Jacobsen of a DEA agent re-opening a cardboard box, a law enforcement officer confronted with a set of emails that have been accessed by a third party cannot possibly be certain of the emails’ contents or that additional private information will not be disclosed. Nor can it seriously be maintained that a reasonable individual, by using an email account serviced by a third party, thereby grants an implied license to the government to rifle through her emails.
Without this Court’s intervention, the vast amount of information accessible through an individual’s emails will remain subject to warrantless searches. The government could use the private-search doctrine to justify warrantless searches into emails whenever a third-party service provider has some reason—correct or not—to believe the email contains evidence of a crime. Rejection of the trespass approach under circumstances such as this could lead to expansive warrantless searches and vast digital surveillance.
This Court should grant the petition for a writ of certiorari to clarify the applicability of the trespass approach under the Fourth Amendment to warrantless searches of email such as those conducted here.
Full Amicus Brief: Mark Ringland v. United States of America