[FoRK] Appeals Court Says Feds Need Warrants to Search E-Mail

Stephen D. Williams <sdw at lig.net> on Tue Jun 19 11:37:05 PDT 2007



Appeals Court Says Feds Need Warrants to Search E-Mail
By Luke O'Brien EmailJune 18, 2007 | 1:22:17 PMCategories: Privacy, 
Surveillance, The Courts

Images A federal appeals court on Monday issued a landmark decision 
(.pdf) http://www.ca6.uscourts.gov/opinions.pdf/07a0225p-06.pdf that 
holds that e-mail has similar constitutional privacy protections as 
telephone communications, meaning that federal investigators who search 
and seize emails without obtaining probable cause warrants will now have 
to do so.

"This decision is of inestimable importance in a world where most of us 
have webmail accounts," said Kevin Bankston, a staff attorney for the 
Electronic Frontier Foundation.

The ruling by the Sixth U.S. Circuit Court of Appeals in Ohio upheld a 
lower court ruling that placed a temporary injunction on e-mail searches 
in a fraud investigation against Steven Warshak, who runs a supplements 
company best known for a male enhancement product called Enzyte. Warshak 
hawks Enzyte using "Smiling Bob" ads that have gained some notoriety.

The case boiled down to a Fourth Amendment argument, in which Warshak 
contended that the government overstepped its constitutional reach when 
it demanded e-mail records from his internet service providers. Under 
the 1986 federal Stored Communications Act (SCA), the government has 
regularly obtained e-mail from third parties without getting warrants 
and without letting targets of an investigation know (ergo, no 
opportunity to contest).

But a district court held that the SCA violates the Fourth Amendment by 
allowing the feds to secretly seize e-mail without probable cause 
warrants. Under the SCA, the government is required to get warrants for 
any e-mails that have been stored on third-party servers for less than 
180 days. (the SCA came into effect long before the days of eternal 
Gmail storage.) After that, it can use an administrative subpoena or a 
different court order, provided it notified the target of the 
investigation. (the feds missed their legally mandated deadline for 
notifying Warshak by nearly a year.) To make matters more complicated, 
the government argued that the definition of "electronic storage" in the 
statute meant the feds only needed warrants when e-mail had yet to be 
opened or downloaded.

"The DOJ reading of the statue in practical terms is that any e-mail you 
have opened it can obtain without a warrant," Bankston said. But the 
district court ruled that the Fourth Amendment holds otherwise. And the 
appellate court affirmed the lower court's decision, agreeing that 
e-mail users have a reasonable expectation of privacy, regardless of how 
old their correspondence is and where it is stored. From the decision:

"In considering the factors for a preliminary injunction, the district 
court reasoned that e-mails held by an ISP were roughly analogous to 
sealed letters, in which the sender maintains an expectation of privacy. 
This privacy interest requires that law enforcement officials warrant, 
based on a showing of probable cause, as a prerequisite to a search of 
the e-mails."

To reach its decision, the court relied on two amici curiae that 
presented compelling arguments for shoring up current privacy law with 
respect to e-mail. Both the Electronic Frontier Foundation (together 
with the ACLU and the Center for Democracy and Technology) and a 
coalition of internet law professors argued that e-mail is a vital form 
of communication in today's world and its privacy must be safeguarded 
under the constitution lest society's ability to engage in unfettered 
debate and discussion be eroded.

 From the EFF amicus brief (.pdf):

"This case must be considered in the context of one overriding fact: 
millions of Americans use email every day for practically every type of 
personal business. Private messages and conversations that once would 
have been communicated via postal mail or telephone now occur through 
email, the most popular mode of Internet communication. Love letters, 
family photos, requests for (and offerings of) personal advice, personal 
financial documents, trade secrets, privileged legal and medical 
information—all are exchanged over email, and often stored with email 
providers after they are sent or received. These myriad private uses of 
email demonstrate society’s expectation that the personal emails sent 
and received over the Internet and stored with email providers are as 
private as a sealed letter, a telephone call, or even papers that are 
kept in the home."

 From the internet professors' brief:

"E-mail has become so indispensable that it must be reasonable for us to 
expect that it is private. One who looks at our e-mails obtains a 
detailed view into our innermost thoughts; no previous mode of 
surveillance exposes more. When we compose private and professional 
e-mails, embed links to Internet sites in some, and attach documents, 
pictures, sound files and videos to others, we rely on the privacy of 
the medium. Society does not make us rely at our peril but rather 
accepts as reasonable our expectations of privacy in e-mail."

Because of the secrecy in which SCA investigations have been conducted, 
it's impossible to say how widespread this kind of government snooping 
into e-mail has been. "We don't know how often [it's happened]," said 
Susan Freiwald, a law professor at the University of San Francisco who 
submitted one of the briefs. "The only way to find this out is if the 
ISPs told us or the government told us. The information is not reported 
to Congress."

Bankston suggested that the practice was widespread: "It is absolutely 
routine. It is and has been the Department of Justice and presumably 
local law enforcement's standard practice for obtaining e-mails over the 
last 20 years."

There have been no previous constitutional challenges of the SCA, likely 
because ISPs don't want to cause trouble and targets of investigations 
don't know that their e-mail is being read. "This demonstrates the 
importance of judicial review," Freiwald said. "You don't ask an agency 
to set its own governing rules."

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