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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