Is Email Metadata Collection Snooping Legal?

In 1967, the U.S. Supreme Court decided in Katz v. United States that an eavesdropping device planted by the FBI in a phone booth, without any authorization by a judge, violated a defendant’s Fourth Amendment rights.

Writing the majority opinion in Katz v. United States, Justice Potter Stewart invoked Brandeis’ 1890 article “The Right to Privacy,” in a footnote and further elaborated on Brandeis’ principle with this passage:

For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. … But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.

That was a broad statement of Fourth Amendment theory in 1967, but it resonates even more strongly today, despite efforts by later courts to narrow Fourth Amendment protection to whether an individual has a “reasonable expectation of privacy” to things like phone call records.

The technology has changed since since 1967 but the ruling by the Supreme Court still stands: “What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. … But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.”

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