without a warrant);1 Orin S. Kerr, A User’s Guide to the Stored Communications Act, and a
Legislator’s Guide to Amending It, 72 Geo. Wash. L. Rev. 1208, 1214 (2004) (emphasizing that
“[t]he SCA is not a catch-all statute designed to protect the privacy of stored Internet
communications” and that “there are many problems of Internet privacy that the SCA does not
address”). But this case does not require us to address those arguable defects in the statute. That
is because in this case, the government complied with the most restrictive privacy-protecting
requirements of the Act. Those requirements are consistent with the highest level of protection
ordinarily required by the Fourth Amendment for the issuance of search warrants: a
demonstration by the government to an independent judicial officer that evidence presented on
oath justifies the conclusion that there is probable cause to believe that a crime has been
committed, and that evidence of such crime can be found in the communications sought by the
government.
That point bears significant emphasis. In this case, the government proved to the
satisfaction of a judge that a reasonable person would believe that the records sought contained
evidence of a crime. That is the showing that the framers of our Bill of Rights believed was
sufficient to support the issuance of search warrants. U.S. Const. amend. IV (“[N]o Warrants
shall issue, but upon probable cause . . . .”). In other words, in the ordinary domestic law
enforcement context, if the government had made an equivalent showing that evidence of a
crime could be found in a citizen’s home, that showing would permit a judge to authorize law
enforcement agents to forcibly enter that home and search every area of the home to locate the
1
In the wake of Warshak, it has apparently been the policy of the Department of Justice
since 2013 always to use warrants to require the disclosure of the contents of emails under the
SCA, even when the statute permits lesser process. H.R. Rep. No. 114-528, at 9 (2016).
2
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