Want My E-Mail? Get a Warrant


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.”

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