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Court Ruling Grants Email the Cloak of Privacy

Court Ruling Grants Email the Cloak of Privacy

"Just because we now use modes of communications not contemplated by the framers of the Constitution does not mean that government gets a free pass to intercept and listen in without following constitutionally mandated process," said Jonathan Askin, a professor at Brooklyn Law School. "As our modes of communications evolve, so should the legal processes affecting them."

By Erika Morphy E-Commerce Times ECT News Network
12/15/10 1:03 PM PT

The Sixth Circuit Court of Appeals has handed down a ruling that delights privacy advocates and Fourth Amendment purists: In U.S. v. Warshak, it found that the government should have obtained a search warrant before seizing and searching defendant Stephen Warshak's emails, which were stored by email service providers.

In the criminal case, Warshak was being investigated by the Justice Department for fraud and related crimes associated with his marketing of "male enhancement" pills.

During the investigation, the Justice Department ordered the email provider to prospectively preserve copies of Warshak's future emails, using a subpoena and a non-probable cause court order. The government based its actions on the Stored Communications Act, which allows it to obtain emails already in storage with a provider.

The Court of Appeals agreed that the government did act in good faith by relying on the Stored Communications Act. However, it continued, a warrant was in order.

"If we accept that an email is analogous to a letter or a phone call, it is manifest that agents of the government cannot compel a commercial ISP to turn over the contents of an email without triggering the Fourth Amendment," the decision reads. "An ISP is the intermediary that makes email communication possible. Emails must pass through an ISP's servers to reach their intended recipient. Thus, the ISP is the functional equivalent of a post office or a telephone company."

Calls for New Laws

It is an important ruling, because it is the first time a federal court of appeals has extended the Fourth Amendment to email with such careful consideration, and it is likely to be influential on both legal and practical levels, Alexander H. Southwell, a partner with Gibson Dunn's white collar defense and investigations practice, told the E-Commerce Times.

"This will likely lead to re-invigorated calls for legislation," he predicted.

The decision is particularly important because the Stored Communications Act does allow the government to secretly obtain emails without a warrant in many situations, according to the EFF, which filed an amicus brief in the case.

The Department of Justice was unable to return a call from the E-Commerce Times in time for publication.

"It's reassuring to see that the Sixth Circuit recognizes that the Fourth Amendment should be technology-agnostic," Jonathan Askin, a professor at Brooklyn Law School, told the E-Commerce Times.

"Just because we now use modes of communications not contemplated by the framers of the Constitution does not mean that government gets a free pass to intercept and listen in without following constitutionally mandated process," he pointed out. "As our modes of communications evolve, so should the legal processes affecting them."

More Needs to Be Done

It is important to remember, though, that this is one circuit court out of eleven, said Jim Dempsey, VP for public policy at the Center for Democracy and Technology.

"If anything, it heightens the issue and gives credibility to the notion that the courts are all over the map on this issue, and that inconsistent rulings don't provide customers or businesses or the government with the kind of certainty that they should all want," Dempsey told the E-Commerce Times.

Dempsey is a member of the Digital Due Process coalition, formed earlier this year by such companies as Google, the ACLU, Microsoft and Salesforce.com. The coalition is calling for the federal government to update laws on government access to email and private files stored by third-party service providers in the cloud -- or any other storage system.

Currently, the coalition holds, third-party storage of digital data is a legal gray area, which has allowed the Department of Justice to prevail with the argument that all it needs is a subpoena or court order to obtain customer data from companies. The coalition would like to see clear laws requiring warrants for such requests.


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