Want My E-Mail? Get a Warrant
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The federal government can no longer seize and read e-mail without a search warrant, a federal appeals court ruled Monday. Americans, the court said, have the same reasonable expectation of privacy for e-mail as they do telephone calls and snail mail.
The unanimous decision of the 6th U.S. Circuit Court of Appeals upholds a district court ruling that the government cannot use the federal Stored Communications Act (SCA) to secretly obtain stored e-mail without a warrant or prior notice to the e-mail account holder.
"We have little difficulty agreeing with the district court that individuals maintain a reasonable expectation of privacy in e-mails that are stored with, or sent or received through, a commercial Internet service provider," the court ruled. "The content of e-mail is something that the user 'seeks to preserve as private,' and therefore 'may be constitutionally protected.'"
The court added, "It goes without saying that like the telephone earlier in our history, e-mail is an ever-increasing mode of private communication, and protecting shared communications through this medium is as important to Fourth Amendment principles today as protecting telephone conversations has been in the past."
The case arose through a federal fraud investigation of Cincinnati's Steven Warshak, the owner and operator of Berkeley Premium Nutraceuticals, which sells herbal remedies. In September, Warshak and five other principles were indicted on 115 counts of fraud, including charging consumers' credit cards without authorization and laundering the money through personal and investment accounts.
During the course of the investigation, federal officials seized Warshak's e-mail without any notice to him. When the indictment was unsealed, Warshak moved to stop the government from seizing any more of his e-mail without a search warrant.
When the government refused, Warshak brought suit in the Southern District of Ohio contending the government was violating his Fourth Amendment protections against unlawful search and seizure.
The district court agreed and issued an order prohibiting the government "from seizing the contents of any personal e-mail account maintained by an ISP in the name of any resident of the Southern District of Ohio without providing the relevant account holder or subscriber prior notice and an opportunity to be heard."
The Department of Justice (DoJ) appealed the decision, contending the 20-year-old SCA allows it to go to ISPs and seize e-mail without notice to the account holder. The SCA aside, the DoJ also contended that e-mail accounts used for fraudulent purposes have no expectation of privacy.
The appeals court rejected that argument, calling it a red herring.
"Even if a hypothetical user wanted to conceal his identity or address from the ISP, the provision of misinformation would not bear in any way upon the privacy of the content of the user's e-mails," the court ruled.
According to the Electronic Frontier Foundation (EFF), which filed a brief supporting Warshak's case, the appeals court decision is the first circuit court ever to make a finding that Americans' e-mail is protected.
"E-mail users expect that their Hotmail and Gmail inboxes are just as private as their postal mail and their telephone calls," EFF staff attorney Kevin Bankston said in a statement. "The government tried to get around this common-sense conclusion, but the Constitution applies online as well as offline, as the court correctly found. That means that the government can't secretly seize your e-mails without a warrant."