FWD: The Fourth Amendment and Your Email

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.

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email, Privacy, law

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