In a decision beautifully written by Judge Boggs, the Sixth Circuit has ruled that email users have the same expectations of privacy as telephone and postal mail users, thus the government needs to obtain a search warrant based on probable cause before it can secretly search or seize email messages—even if the email is stored at service providers. U.S. v. Warshak, Case No. 08-3997/4085/4087/4212/4429; 09-3176 (Dec. 14, 2010) (PDF).
In so holding, the Court declared unconstitutional that portion of the Stored Communications Act, 18 U.S.C. 2701 et seq., that allows the government to obtain certain electronic communications without procuring a warrant. “[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.”
As with telephone calls and postal mail, people have a “reasonable expectation” that emails will remain private, the Sixth Circuit stated. “Lovers exchange sweet nothings, and businessmen swap ambitious plans, all with the click of a mouse button,” the court said. “By obtaining access to someone’s email, government agents gain the ability to peer deeply into his activities. . . the Fourth Amendment must keep pace with the inexorable march of technological progress, or its guarantees will wither and perish.”
