[AfrICANN-discuss] Breaking News on EFF Victory: Appeals Court Holds that Email Privacy Protected by Fourth Amendment

Anne-Rachel Inné annerachel at gmail.com
Wed Dec 15 08:24:22 SAST 2010

More law stuff all :-)
Breaking News on EFF Victory: Appeals Court Holds that Email Privacy
Protected by Fourth
*News Update <https://www.eff.org/blog-categories/news-update> by Kevin
Bankston <https://www.eff.org/about/staff/kevin-bankston>*

In a landmark decision issued
today<https://www.eff.org/files/warshak_opinion_121410.pdf>in the
criminal appeal of U.S.
v. Warshak <https://www.eff.org/cases/warshak-v-united-sta>, the Sixth
Circuit Court of Appeals has ruled that the government must have a search
warrant before it can secretly seize and search emails stored by email
service providers. Closely tracking arguments made by EFF in its amicus
brief <https://www.eff.org/files/filenode/Warshak_EFF_Amicus_Brief.pdf>, the
court found that email users have the same reasonable expectation of privacy
in their stored email as they do in their phone calls and postal mail.

EFF filed a similar amicus
the 6th Circuit in 2006 in a civil
suit <https://www.eff.org/cases/warshak-v-usa> brought by criminal defendant
Warshak against the government for its warrantless seizure of his emails.
There, the 6th Circuit agreed with
EFF<https://www.eff.org/press/releases/2007/06#005321>that email users
have a Fourth Amendment-protected expectation of privacy in
the email they store with their email providers, though that decision was
later vacated<https://www.eff.org/deeplinks/2008/07/sixth-circuit-dodges-constitutional-question-email>on
procedural grounds. Warshak's appeal of his criminal conviction has
brought the issue back to the Sixth Circuit, and once again the court has
agreed with EFF and held that email users have a Fourth Amendment-protected
reasonable expectation of privacy in the contents of their email accounts.

As the Court held today,

Given the fundamental similarities between email and traditional forms of
communication [like postal mail and telephone calls], it would defy common
sense to afford emails lesser Fourth Amendment protection.... It follows
that email requires strong protection under the Fourth Amendment; otherwise
the Fourth Amendment would prove an ineffective guardian of private
communication, an essential purpose it has long been recognized to serve....
[T]he police may not storm the post office and intercept a letter, and they
are likewise forbidden from using the phone system to make a clandestine
recording of a telephone call--unless they get a warrant, that is. It only
stands to reason that, if government agents compel an ISP to surrender the
contents of a subscriber's emails, those agents have thereby conducted a
Fourth Amendment search, which necessitates compliance with the warrant

Today's decision is the *only* federal appellate decision currently on the
books that squarely rules on this critically important privacy issue, an
issue made all the more important by the fact that current federal law--in
particular, the Stored Communications Act--allows the government to secretly
obtain emails without a warrant in many situations. We hope that this ruling
will spur Congress to update that law as EFF and its partners in the Digital
Due Process <https://www.eff.org/press/archives/2010/03/30> coalition have
urged, so that when the government secretly demands someone's email without
probable cause, the email provider can confidently say: "Come back with a

Related Issues: Privacy <https://www.eff.org/issues/privacy>

Related Cases: Warshak v. United
, Warshak v. USA <https://www.eff.org/cases/warshak-v-usa>
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