The Fourth Amendment Covers Email After All

If you live in the United States, or know people who do, you're probably aware that the political environment here has become increasingly toxic over the past few years. All three branches of the US government are variously portrayed as corrupt, incompetent, self-serving, or otherwise not acting in the best interest of the citizens of the country. That's why I'm happy to be writing this week's UPDATE about a semi-political topic—it's good news for all of us.

The Fourth Amendment to the US Constitution is supposed to protect citizens against unreasonable or illegal searches and seizures of their property. This right has been steadily eroded over time, with various agencies and interest groups arguing for increasingly invasive searches—supposedly for our own protection. Federal law enforcement groups have made the argument that they need extraordinary powers to search electronic communications to prevent or interrupt criminal acts, including terrorist attacks. This is all old news, but what's new is that the Sixth Circuit Court of Appeals recently made a decision that favors concrete privacy rights over abstract security concerns.

In the case known as Warshak v. United States, the US Department of Justice was investigating Stephen Warshak on suspicion of wire fraud, bank fraud, and mail fraud pursuant to his company, Berkeley Premium Nutraceuticals. (You might recognize the "Smilin' Bob" commercials for Berkeley's flagship product, Enzyte.) In 2004, the DoJ asked Warshak's Internet provider to make copies of his mail, claiming that the Stored Communications Act (SCA) allowed them to do so. The ISP complied, the DoJ got evidence, and Warshak was convicted—a conviction that he promptly appealed.

Now, let me say that from the evidence presented, it seems clear that Warshak was guilty as hell. That's not the point, though; the point of the case is that the government conducted a search, with no warrant, of communications that Warshak reasonably believed to be private. The Sixth Circuit decision affirmed what seems to be common sense: The government must obtain a warrant to search or seize stored email messages just as they would to search any other kind of stored record. The court decision said:

"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."

That statement strikes me as being exactly correct: If the government wants to access email messages, they should be required to obtain a warrant to do so. This decision is encouraging in two respects. First, it should make ISPs sit up and take notice of their actual legal obligations, including the fact that they are not obligated to facilitate warrantless searches. Second, the release of this judgment sets a precedent that might well apply to other cases.

This will be my last UPDATE for 2010, so please accept my best wishes to you all for a wonderful holiday season and my thanks for subscribing to the Exchange & Outlook UPDATE!

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