In Monday’s unanimous ruling, the court found that e-mail users have the same reasonable expectation of privacy in their stored e-mail as they do in their telephone calls. The 6th U.S. Circuit Court of Appeals is the first circuit court ever to make that finding.
Over the past 20 years, the government has routinely used the federal Stored Communications Act (SCA) to obtain stored e-mail from ISPs without a warrant. But this week’s ruling found that the SCA violates the Fourth Amendment.
“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 continued: “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.”
Steven Warshak brought the case against the United States in the Southern District of Ohio federal court to stop the government’s repeated secret searches and seizures of his stored e-mail using the SCA. The district court ruled that the government cannot use the SCA to obtain stored e-mail without a warrant or prior notice to the e-mail account holder, but the government appealed that ruling to the 6th Circuit.
The Electronic Frontier Foundation served as an amicus in the case, joined by the American Civil Liberties Union and the Center for Democracy & Technology. Law professors Susan Freiwald and Patricia Bellia also submitted an amicus brief, and the case was successfully argued at the 6th Circuit by Warshak’s counsel Martin Weinberg.
Privacy Advocates Applaud
“E-mail users expect that their Hotmail and Gmail inboxes are just as private as their postal mail and their telephone calls,” Electronic Frontier Foundation 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.”
Marc Rotenberg, president of the Electronic Privacy Information Center, agreed with Bankston. He called it a “good decision” that helps clarify an area of the law that has confused many court magistrates faced with applying the Fourth Amendment standards to stored e-mail.
“As the ruling currently stands, it’s one of the most significant decisions in several years concerning privacy because it came down from the federal appeals court,” Rotenberg said. “This ruling impacts not only e-mail companies but also many others. So we’ll certainly be interested to see what happens.”