The cases this week take the ruling of Katz and the protection of the Fourth Amendment to a new technological level. It was argued in Smith that a pen register placed at the phone company used to record the numbers that Smith called from his telephone did not constitute a search under the Fourth Amendment and the police did not need a warrant to install the pen register. Similarly, in Forrester, the courts argued that obtaining the to/from addresses of emails from ISPs did not constitute a Fourth Amendment search . Both of these rulings were prefaced with the assertion that there particular searches did not in any way obtain the phone conversations or the content of the emails; the content remained private. With these cases, the lack of a warrant makes sense; individuals are aware that phone companies and ISPs need to use the phone numbers and email addresses to appropriately direct messages, and therefore the subpoena of this information can be made without a warrant.

However, in Warshak, the government asserted that ISPs have a "contractual right to access users' emails." Since ISPs are third parties, the information kept on ISPs servers can also be subpoenaed without a warrant. However, I want to argue that in Warshak, the actions conducted by the US government in reading and obtaining the email of Warshak is analogous to wiretapping. In wiretapping, the information obtained by the third party, the wiretapper, is illegal. ISPs, although they are different from wiretappers in the sense that they are needed by individuals to direct their email and Internet, are in the same position as wiretappers and as a result, the information that is stored on their servers should not be legally revealed or obtained by the government without a warrant. Extending this analogy further, even the revealing of the to/from phone numbers and email addresses would be considered illegal because this information in the overall perspective is the same as the content of phone conversations and emails. If third parties are then interpreted to be in the same position as wiretappers, to access the information stored on their servers without a warrant, therefore, would be entirely illegal. Still, if this conclusion is made true, it could throw off the balance that the Fourth Amendment between having information to prosecute crime and protecting the information and privacy of individuals in favor of the latter. I believe individuals definitely have a reasonable and legitimate expectation that their emails, dialed phone numbers, and email addresses are to remain private regardless if private third parties have access to them. I would therefore argue that obtaining third party information is a search under the Fourth Amendment and therefore in need of a warrant.

As stated before, there are some strong differences in intent between the wiretapper and the ISPs and phone companies, and these differences may be enough to treat the two parties in two different camps. In addition, there also is a distinction between information that is content (and private) and information that is directional (such as addresses, which is arguably public). I recognize that in my position I am treating all information the same, and I am curious to see if there are other types of information that do not fit within these two categories and how the treatment of that information would differ from the treatment of private content and public addresses.