More law stuff all :-)<br><a href="https://www.eff.org/deeplinks/2010/12/breaking-news-eff-victory-appeals-court-holds">https://www.eff.org/deeplinks/2010/12/breaking-news-eff-victory-appeals-court-holds</a><br><h1><a href="https://www.eff.org/deeplinks/2010/12/breaking-news-eff-victory-appeals-court-holds">Breaking News on EFF Victory: Appeals Court Holds that Email Privacy Protected by Fourth Amendment</a></h1>
<i class="author"><span class="cat"><a href="https://www.eff.org/blog-categories/news-update">News Update</a></span>
by <a href="https://www.eff.org/about/staff/kevin-bankston">Kevin Bankston</a></i>
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<p>In a <a href="https://www.eff.org/files/warshak_opinion_121410.pdf">landmark decision issued today</a> in the criminal appeal of <a href="https://www.eff.org/cases/warshak-v-united-sta">U.S. v. Warshak</a>,
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 <a href="https://www.eff.org/files/filenode/Warshak_EFF_Amicus_Brief.pdf">amicus brief</a>,
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.</p>
<p>EFF filed a similar <a href="https://www.eff.org/files/filenode/warshak_v_usa/warshak_amicus.pdf">amicus brief</a> with the 6th Circuit in 2006 in a <a href="https://www.eff.org/cases/warshak-v-usa">civil suit</a> brought by criminal defendant Warshak against the government for its warrantless seizure of his emails. There, the 6th Circuit <a href="https://www.eff.org/press/releases/2007/06#005321">agreed with EFF</a>
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 <a href="https://www.eff.org/deeplinks/2008/07/sixth-circuit-dodges-constitutional-question-email">vacated</a>
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.</p>
<p>As the Court held today,</p>
<blockquote><p>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 requirement....</p></blockquote>
<p>Today's decision is the <i>only</i> 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 <a href="https://www.eff.org/press/archives/2010/03/30">Digital Due Process</a>
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 warrant."</p>
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<tr class="odd"><td><a href="https://www.eff.org/files/warshak_opinion_121410.pdf">warshak_opinion_121410.pdf</a></td><td>316.97 KB</td> </tr>
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<p class="topics">Related Issues: <a class="topicsitem" href="https://www.eff.org/issues/privacy">Privacy</a></p>
<p class="topics">Related Cases: <a class="topicsitem" href="https://www.eff.org/cases/warshak-v-united-sta">Warshak v. United States</a>, <a class="topicsitem" href="https://www.eff.org/cases/warshak-v-usa">Warshak v. USA</a></p>
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