Appeals Court rules email privacy protected by 4th Amendment
I’ve already blogged once today, but this one is too important to wait.
Thanks very much DJ for bringing the decision to my attention.
In a landmark decision today, the Sixth Circuit Court of Appeals ruled, in the criminal case of U.S. v. Warshak, 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 the Electronic Frontier Foundation (main office in San Francisco, CA) in its amicus brief, the Court of Appeals 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.
“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….”
The Court decision is the ONLY federal appellate decision on the books that directly addresses this privacy issue. Currently federal law, particularly the Stored Communications Act, allows the government to secretly obtain emails without a warrant in many cases.
I have said before that, of the three branches of our government, I generally respect the Judicial Branch the most because, most of the time, it obeys the law.
(Note added December 14, 2010 10:20 PM PST: CNET had this to say about today’s decision. It is refreshing that at a time when the U.S. Air Force is censoring the news for its members and reportedly, a “secret grand jury” in Alexandria, VA may be plotting its revenge against WiliLeaks, the Sixth Circuit Appeals Court is sincerely pursuing justice and upholding Constitutional law. For awhile this evening, I thought that I was living in some other country, and not a good one. I found no mention of today’s Appeals Court decision on CNN’s main page (misplaced sense of values?). Fortunately, the CNET folks did a good job. Maybe Air Force personnel will get to read about the court decision someday, if not too much news is redacted.)
(Note added December 15, 2010: Nineteen professors of journalism of one of the most prominent journalism schools of the U.S., Columbia Journaiism School, have written a letter to ask President Obama and Attorney General Eric Holder not to prosecute WikiLeaks. “We all believe that in publishing diplomatic cables WikiLeaks is engaging in journalistic activity protected by the First Amendment,” according to the letter.
When engaging in a witch-hunt, it is always good to remember the First Amendment Rights of the witch.)
-Bill at
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