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In U.S. v. Warshak, the Sixth Circuit Court of Appeals ruled that emails must be afforded the same protection as letters and telephone communications under the 4th Amendment. In other words, before the government can search and seize e-mails, it will need to obtain a warrant. Warshak was prosecuted and convicted in a case concerning fraud. One of the many grounds for appeal dealt with the constitutionality of the search and seizure of 27,000 e-mails sent and received by Warshak. Based on the Stored Communications Act, 18 U.S.C. § 2703(f), the government requested one of Warshak’s Internet Service Providers (“ISP”) to preserve all e-mails sent and received by Warshak. In 2005, the government subpoenaed the ISP to provide all the preserved e-mails of Warshak and later in the same year the government compelled the ISP to provide additional e-mails of Warshak by a court order. At no time was Warshak aware or made aware of the seizure of his e-mails until May 2006. The Sixth Circuit agreed with Warshak that the government violated Warshak’s Fourth Amendment rights by compelling his ISP to turn over the contents of his emails. In its ruling the Sixth Circuit explained the importance of the 4th Amendment: “[t]he fundamental purpose of the Fourth Amendment ‘is to safeguard the privacy and security of individuals against arbitrary invasions by government officials.’” Whether a search occurs depends on an important question: whether “the government infringes upon ‘an expectation of privacy that society is prepared to consider reasonable.’” In order to answer this question two other questions need to be answered: (1) “has the [target of the investigation] manifested a subjective expectation of privacy in the object of the challenged search”; and (2) “is society willing to recognize that expectation as reasonable.” The Sixth Circuit answered the first question affirmatively by stating that “[g]iven the often sensitive and sometimes damning substance of his [Warshak’s] emails, we think it highly unlikely that Warshak expected them to be made public, for people seldom unfurl their dirty laundry in plain view.” Then the court addressed the second question and considered the following: “Since the advent of email, the telephone call and the letter have waned in importance, and an explosion of Internet-based communication has taken place. People are now able to send sensitive and intimate information, instantaneously, to friends, family, and colleagues half a world away. Lovers exchange sweet nothings, and businessmen swap ambitious plans, all with the click of a mouse button. Commerce has also taken hold in email. Online purchases are often documented in email accounts, and email is frequently used to remind patients and clients of imminent appointments. In short, “account” is an apt word for the conglomeration of stored messages that comprises an email account, as it provides an account of its owner’s life. By obtaining access to someone’s email, government agents gain the ability to peer deeply into his activities.”
Looking at the opinions written by the U.S. Supreme Court concerning the privacy regarding telephone calls (Katz) and letters (Jacobsen) the Sixth Circuit decided that “[g]iven the fundamental similarities between email and traditional forms of communication, it would defy common sense to afford emails lesser Fourth Amendment protection.” The court went on to say that “[i]t 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.” Although the sixth Circuit agreed with Warshak, it did not help him in this case. The warrantless search and seizure of the 27,000 e-mails was based on the Stored Communications Act which allowed the government to obtain the e-mails without a warrant. The Appeals Court ruled that the government agents relied on the provisions of the Stored Communication Act in good faith and therefore these agents could not be held liable for actions of the legislature. In a footnote the court mentioned that as of now the exception of good-faith reliance may not apply anymore regarding this provision of the Stored Communications Act and that the exclusionary rule might apply when government agents search and seize e-mails without a warrant. The Electronic Frontier Foundation (EFF) played an important part in the Warshak case and more information, like the decision of the Appeals Court the amicus brief of the EFF can be found on their website www.eff.org. Sources: https://www.eff.org/deeplinks/2010/12/breaking-news-eff-victory-appeals-court-holds http://www.zdnet.com/blog/btl/appeals-court-email-communication-is-protected-under-the-fourth-amendment/42723 http://www.law.cornell.edu/uscode/18/usc_sec_18_00002703----000-.html |
