0.  Mulligan, “Reasonable Expectations in Electronic Communications,” supra note 1, at 1584.

0.  Noncommunications such as photos, diaries, and documents stored in the cloud fall under ECPA’s weaker protections of “Remote Computing Services,” rather than “Electronic Communications Services.” See, e.g., Kerr, “A User’s Guide to the Stored Communications Act, and a Legislator’s Guide to Amending It,” supra note 1, at 1214; Theodoric Meyer, “No Warrant, No Problem: How the Government Can Still Get Your Digital Data,” ProPublica, June 27, 2014, www.propublica.org/special/no-warrant-no-problem-how-the-government-can-still-get-your-digital-data (noting that unsent email drafts, as well as documents and photos on services like Dropbox and SkyDrive, require no more than a subpoena or court order).

0.  Rotenberg Interview, supra note 12.

0.  Editorial, “The End of Privacy,” N.Y. Times, July 15, 2012, at SR10. On government requests for cell phone location data, see, for example, In re Search Warrant, 74 F. Supp. 3d at 1185–86.

0.  The Mosaic Web browser was released in 1993. See J. Beckwith Burr, “The Electronic Communications Privacy Act of 1986: Principles for Reform,” at 8 n.30 (2010).

0.  Mulligan, “Reasonable Expectations in Electronic Communications,” supra note 1, at 1560 (personal computers); J. Beckwith Burr, “The Electronic Communications Privacy Act of 1986: Principles for Reform,” Mar. 30, 2010, at 8, http://digitaldueprocess.org/files/DDP_Burr_Memo.pdf (web browser); In re Application, 747 F.Supp.2d at 832 (cell sites).

0.  Paul Ohm, “Probably Probable Cause,” Minn. L. Rev. 94 (2010): 1551n182 (“changing it in fairly significant ways”); Who We Are, Digital Due Process, www.digitaldueprocess.org/index.cfm?objectid=DF652CE0-2552-11DF-B455000C296BA163; Our Principles, Digital Due Process, http://digitaldueprocess.org/index.cfm?objectid=A77781D0-2551-11DF-8E02000C296BA163.

0.  Comey Remarks, supra note 11.

0.  Id.

0.  Id.

0.  Id.

0.  Privacy Built In, Apple, www.apple.com/privacy/privacy-built-in/; Comey Remarks, supra note 11.

0.  See Eric Lichtblau, “Judge Tells Apple to Help Unlock iPhone Used by San Bernardino Gunman,” N.Y. Times, Feb. 16, 2016, www.nytimes.com/2016/02/17/us/judge-tells-apple-to-help-unlock-san-bernardino-gunmans-iphone.html; Eric Lichtblau and Kate Brenner, “Apple Fights Order to Unlock San Bernardino Gunman’s iPhone,” N.Y. Times, Feb. 17, 2016, www.nytimes.com/2016/02/18/technology/apple-timothy-cook-fbi-san-bernardino.html; Kate Brenner and Eric Lichtblau, “U.S. Says It Has Unlocked iPhone Without Apple,” N.Y. Times, Mar. 28, 2016, www.nytimes.com/2016/03/29/technology/apple-iphone-fbi-justice-department-case.html.

0.  Comey Remarks, supra note 11.

0.  Long after everyone else could see the insanity of it, the government continued to insist it should be able to get emails left on a server more than six months without a warrant or probable cause. It also argued that the moment an email was opened, it should be able to use D-order rather than a warrant. Kerr, “User’s Guide,” supra note 1, at 1219. And even though, in 2015, virtually everyone agreed the ECPA’s email rules were wildly out of sync with actual social practice, federal enforcement agencies such as the Securities and Exchange Commission and the Department of Justice continued to fight ECPA reform arguing they should be able to get emails—the content of communications—via subpoena.

0.  Comey Remarks, supra note 11 (emphasis added); Going Dark: Encryption, Technology, and the Balance Between Public Safety and Privacy, Hearing Before the S. Comm. on the Judiciary, 114th Cong. (2015), at 1, 3, 5 (joint statement of James B. Comey, Dir., Fed. Bureau of investigation, and Sally Quillian Yates, Dep. Att’y Gen., U.S. Dep’t of Justice) (emphasis added) (hereinafter Comey-Yates Joint Statement).

0.  Reforming the Electronic Communications Privacy Act, Hearing Before the S. Comm. on the Judiciary, 114th Cong. (2015), at 2 (statement of Elana Tyrangiel, Principal Dep. Ass’t Att’y Gen., U.S. Dep’t of Justice) (hereinafter Tyrangiel Statement).

0.  Id. at 2–3; Jack Gillum and Eric Tucker, “Do Cases FBI Cites Support Encryption Worries?” AP, Oct. 18, 2014, http://bigstory.ap.org/article/e03177df2c9a4e0ebe5b584c909218bf/do-cases-fbi-cites-support-encryption-worries (showing that content on the phones of perpetrators was “at best, supplementary” to law enforcement’s investigations in cited examples); Marcy Wheeler, “Jim Comey’s Confused Defense of Front Door Back Doors and Storage Intercepts,” Emptywheel, Oct. 16, 2014, www.emptywheel.net/2014/10/16/jim-comeys-confused-defense-of-front-door-back-doors-and-storage-intercepts/ (pointing out that law enforcement in Comey’s proffered anecdotes did not require access to the phones, and most digital evidence was accessible to law enforcement via service providers); Mike Masnick, “Everybody Knows FBI Director James Comey Is Wrong About Encryption, Even the FBI,” Techdirt, Oct. 20, 2014, www.techdirt.com/articles/20141019/07115528878/everybody-knows-fbi-director-james-comey-is-wrong-about-encryption-even-fbi.shtml (same); Mike Masnick, “FUD: Former FBI Guy Lies, Claiming New Mobile Encryption Would Have Resulted in Dead Kidnap Subject,” Techdirt, Sept. 24, 2014, www.techdirt.com/articles/20140923/17483528611/fud-former-fbi-guy-lies-claiming-new-mobile-encryption-would-have-resulted-dead-kidnap-suspect.shtml (disputing another official’s claim that encryption would have hindered law enforcement in another case, because the relevant information was transmitted content available to the service provider rather than stored content limited to the customer’s physical device); Mike Masnick, “Manhattan District Attorney Ratchets Up the ‘Going Dark’ FUD; Leaves Out Its Connection to Shady Hacking Team,” Techdirt, Aug. 12, 2015, www.techdirt.com/articles/20150812/06530731921/manhattan-district-attorney-ratchets-up-going-dark-fud-leaves-out-connection-to-shady-hacking-team.shtml#comments (dismissing the possibility that default smartphone encryption settings were a factor in law enforcement’s inability to solve a murder).

0.  Scott Shane and Colin Moynihan, “Drug Agents Use Vast Phone Trove, Eclipsing N.S.A.’s,” N.Y. Times, Sept. 2, 2013, at A1.

0.  Compare “Who Has Your Back?,” Elec. Frontier Found., www.eff.org/who-has-your-back-government-data-requests-2015, with “Who Has Your Back?,” Elec. Frontier Found., 2011, www.eff.org/who-has-your-back-2011.

0.  Lee Interview, supra note 4.

0.  United States v. Skinner, 690 F.3d 772, 777 (6th Cir. 2012).

0.  Katherine J. Strandburg, “Home, Home on the Web and Other Fourth Amendment Implications of Technosocial Change,” Md. L. Rev. 70 (2011): 614, 629–30, 639.

0.  Comey-Yates Joint Statement, supra note 48, at 3; United States v. Warshak, 631 F.3d 266, 288 (6th Cir. 2010). Note that the government cannot search your rental unit even if the landlord consents to the search. See Chapman v. United States, 365 U.S. 610, 616–17, (1961) (“[T]o uphold such an entry, search and seizure ‘without a warrant would reduce the [Fourth] Amendment to a nullity and leave [tenants’] homes secure only in the discretion of [landlords].’”) (quoting Johnson v. United States, 333 U.S. 10, 14 [1948]).

0.  Tyrangiel Statement, supra note 49, at 7.

0.  Riley v. California, 134 S. Ct. 2473, 2490 (2014).

0.  For example, in holding that the Constitution requires probable cause and a warrant before the government can collect our email from cyberspace, the Sixth Circuit said emails are not like the bank statements and slips that could be subpoenaed in Miller, see supra notes 14–15 and accompanying text, because “the bank depositor in Miller conveyed information to the bank so that the bank could put the information to use in the ordinary course of business. By contrast, Warshak received his emails through NuVox. NuVox was an intermediary, not the intended recipient of the emails.” Warshak, 631 F.3d at 288 (internal quotation marks omitted) (citations omitted): see also Patricia L. Bellia and Susan Freiwald, “Fourth Amendment Protection for Stored E-Mail,” U. Chi. Legal F. 2008: 165 (“[W]e view the best analogy for this scenario as the cases in which a third party carries, transports, or stores property for another. In these cases, as in the stored email case, the customer grants access to the ISP because it is essential to the customer’s interests.”), quoted in Warshak, 631 F.3d at 288.

0.  Richard Posner, Not a Suicide Pact: The Constitution in a Time of National Emergency (2006), 140; Helen Nissenbaum, “Protecting Privacy in an Information Age: The Problem of Privacy in Public,” L. & Phil. 17 (1998): 581–82.

0.  See, e.g., Chapman, 365 U.S. at 616–17 (1961) (“[T]o uphold such an entry, search and seizure ‘without a warrant would reduce the [Fourth] Amendment to a nullity and leave [tenants’] homes secure only in the discretion of [landlords].’”) (quoting Johnson v. United States, 333 U.S. 10, 14 [1948]); Strandburg, “Home, Home on the Web,” supra note 55, at 650; Bellia, “Surveillance Law Through Cyberlaw’s Lens,” supra note 1, at 1405n185.

0.  Miller, 425 U.S. at 440; En Banc Brief of the United States of America, United States v. Davis, 785 F.3d 498 (11th Cir. 2015) No. 12–12928, 2014 WL 7232613, at *21–22 (“Like the bank customer in Miller and the phone customer in Smith, Davis can assert neither ownership nor possession of the third-party records he sought to suppress. Instead, those records were generated by MetroPCS, stored on its own premises, and subject to its control. Cell tower records are not the private papers of the subscriber; indeed, customers “do not generally have access to those records.” (citations omitted)).

0.  See, e.g., Claire Cain Miller, “N.S.A. Spying Imposing Cost on Tech Firms,” N.Y. Times, Mar. 22, 2014, at A1 (reporting on the substantial losses American tech firms incurred after the Snowden revelations, and the emerging benefits to more privacy-oriented European firms).

0.  Michael V. Hayden, Opinion, “Getting Past the Zero-Sum Game Online,” Wash. Post, Apr. 2, 2015, www.washingtonpost.com/opinions/dont-let-america-be-boxed-in-by-its-own-computers/2015/04/02/30742192-cc04-11e4-8a46-b1dc9be5a8ff_story.html.