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E-Discovery and Justice Sotomayor’s Opinion: “Reasonable expectation of privacy” is an unclear standard in today’s digital age

Created on January 26, 2012

Vice President, E-Discovery

Under the 4th Amendment, the US Constitution acknowledges that individuals have a “reasonable expectation of privacy" but today's digital age has blurred the line of what is considered reasonable. While Congress has enacted the Stored Communications Act (SCA), U.S.C. 18 §§ USC 2701-12, there still is much confusion surrounding US privacy laws and what, when and how the SCA protects individuals. Supreme Court Justice Sotomayor's concurring opinion in US v. Jones reinforces that this confusion about US privacy rights are even being felt at the top of the judiciary branch.

In U.S. v. Jones, the Supreme Court ruled that police must have a warrant to attach a GPS tracking device on a car. While the ruling has gained numerous headlines, for e-discovery purposes Justice Sotomayor's opinion highlights the unclear privacy standard surrounding evidence stored on the Internet. Sotomayor calls attention to the controversial 4th amendment rule, the Third Party Doctrine, and how “it may be necessary to reconsider" the doctrine in the current digital landscape. Under the Third Party Doctrine, individuals are not afforded a reasonable expectation of privacy when information is knowingly and voluntarily disclosed to third parties. Many people will counter Sotomayor's statement by pointing to the SCA. (To read more about the SCA, click here)

These people would be right in some cases. The SCA was enacted to protect individual's private electronic records stored on the web. But an important factor is highlighted by Justice Sotomayor's opinion:

The SCA does not protect against the government in non-civil matters (criminal, regulatory, administrative), compelling information with an "administrative subpoena authorized by a Federal or State statute or a Federal or State grand jury or trial subpoena."

In short, the government in criminal matters can subpoena for electronic records (cell phone and text records, purchase history from online websites, etc.) from Internet Service providers without a search warrant.

What can this teach us concerning e-discovery?

  • Competency: It behooves legal teams to be competent and current in their understanding of laws and regulations impacting privacy so they can properly and proactively advise their clients.
  • Keep Updated on Court Rulings: Be on the lookout in 2012 for cases involving privacy rights before the US Supreme Court and how the 4th amendment is interpreted.
  • Enable legal teams to quickly and thoroughly search web based records: When anticipating criminal litigation be proactive in discovery and identify and search records stored on the internet (telephone, texts, etc.) to quickly understand your case and the ability to devise the appropriate case strategy for defending your client.

Mike Hamilton, J.D. is a Sr. E-Discovery Analyst at Exterro, Inc., focusing on educating Exterro customers, prospects and industry experts on how to solve e-discovery issues proactively with technology. His e-discovery knowledge, legal acumen and practical experience give him a valuable perspective on bridging the gap between IT and legal teams. You can find him on Google+, Twitter and Linkedin.