With all the hoopla this week about the conservative new Supreme Court, you might have missed some big news from Ohio. The Sixth Circuit recently handed down Warshak v. US, holding that people have a reasonable expectation of privacy in the contents of their email. If you don't have a legitimate expectation of privacy in something (the way you don't with the back of a postcard), it isn't considered a search or seizure when the government reads or records it, so the Fourth Amendment's prohibition on unreasonable searches and seizures doesn't apply. The court reasoned that, like sealed letters, people expect the contents of their email to remain private. Just like sealed letters pass through the post office, email passes through ISPs; and although both intermediaries have the technical ability to look inside, as a practical matter they don't, and customers justifiably expect them not to (Google ad-bots notwithstanding).
The decision, which relies heavily on some (dare I say) briliant amicus briefs, strikes down a section of the Stored Communications Act which allowed the government to get a court order to get a person's email from their ISP without probable cause or notice to the individual. That kind of facial challenge (saying the statute is unconstitutional in any situation, and no interpretation can save it) is pretty rare, and has raised some eyebrows on the internets.
Monday's decision only applies to some Ohio residents, for the time being, and it'll more than likely get appealed. Still, that's a solid base hit for your constitutional freedoms, and some nice precedent to get on the books.
Comments are closed on this article
ronf57
September 14, 2007 at 12:45pm
Ok, I get the basics here, our email is now protected communication once again. whew!
Let me ask about the implications of this ruling...If my email is the same as sealed snail mail then ANYONE opening or tampering with it is violating
item 1) my right to presumtion of privacy.( a potential civil$ crime, with associated damages claims)
item 2)violating similar federal laws in regards to physical mail.
Now am I incorrect in interpreting this to also mean employers cannot intercept and review any email from an employee except where the email account is a company owned account for the employees usage.
For example:
If I send an email using the company provided email account telling my boss off, even if only sent to myself as theraputic and subsequently get fired because the IT department forwarded it to my boss- and he didn't like it.
But, if i send the same email from my personal email account and IT intercepts it, because of the Millenium Act and HomeLand Security regulation for maintaining emails, the company can be sued (civil case as item 1 above) for violating my rights and thereby causing me to lose my job. I should be able to recoup damages also, as i am now unemployeed-with no income and my pristine employment history is tarnished, no one wants to hire me cause was forced to sue my old company and I am pretty stressed out by all this and that F!*$#@! old boss of mine.
am I right?
omnipc
August 08, 2007 at 4:14pm
The Sixth Circuit decision reflects good judicial judgment. SCA warrantless search is simply based on old law that is not up to date with modern technology. Why should e-mail be treated any different than from regular snail mail? What business does bureaucrat has to do with my electronic communication? Do I get to read the bureaucrat's e-mail content? why should my freedom have last priority to theirs?
what's in your pc?
XRolando
July 01, 2007 at 1:02pm
Always nice to hear about the good deeds of the EFF :) Will Anton Piller orders be affected at all or are they considered something totally different?
erin
July 05, 2007 at 11:09pm
As far as I know, Anton Piller orders only exist in the UK and a few other countries. The US analogue would be the Stored Communications Act orders invalidated by the Warshak decision. The court said that the ISP could be required to preserve the contents of the email pending a hearing, which would serve the same purpose as ordering disclosure (preventing the user from deleting the evidence after getting notice) without the privacy violation.
Print
