Dec 142010
 December 14, 2010  Court, Featured News, Surveillance

Via Howard Bashman of How Appealing:

Email privacy, on appeal: A three-judge panel of the U.S. Court of Appeals for the Sixth Circuit today issued a very lengthy decision on the latest round of appeals in the case captioned United States v. Warshak.

I haven’t had time to wade through the whole opinion yet, so here’s the court’s summary of their holding on the email privacy aspect of the case:

(1) Warshak enjoyed a reasonable expectation of privacy in his emails vis-a-vis NuVox, his Internet Service Provider.  See Katz v. United States, 389 U.S. 347 (1967). Thus, government agents violated his Fourth Amendment rights by compelling NuVox to turn over the emails without first obtaining a warrant based on probable cause. However, because the agents relied in good faith on provisions of the Stored Communications Act, the exclusionary rule does not apply in this instance.  See Illinois v. Krull, 480 U.S. 340 (1987).

Their analysis of the search and seizure of Warshak’s emails begins on page 14 of the opinion:

Warshak argues that the government’s warrantless, ex parte seizure of approximately 27,000 of his private emails constituted a violation of the Fourth Amendment’s prohibition on unreasonable searches and seizures. The government counters that, even if government agents violated the Fourth Amendment in obtaining the emails, they relied in good faith on the Stored Communications Act (“SCA”), 18 U.S.C. §§ 2701 et seq., a statute that allows the government to obtain certain electronic communications without procuring a warrant. The government also argues that any hypothetical Fourth Amendment violation was harmless. We find that the government did violate Warshak’s Fourth Amendment rights by compelling his Internet Service Provider (“ISP”) to turn over the contents of his emails. However, we agree that agents relied on the SCA in good faith, and therefore hold that reversal is unwarranted.

I’ll post links to discussion of the ruling tomorrow after blawgers have had a chance to read the opinion and respond.

Update: Wow, there’s some great stuff in the opinion. Here’s a crucial snippet:

Accordingly, we hold that a subscriber enjoys a reasonable expectation of privacy in the contents of emails “that are stored with, or sent or received through, a commercial ISP.”   Warshak I, 490 F.3d at 473;  see Forrester, 512 F.3d at 511 (suggesting that “[t]he contents [of email messages] may deserve Fourth Amendment protection”).  The government may not compel a commercial ISP to turn over the contents of a subscriber’s emails without first obtaining a warrant based on probable cause.  Therefore, because they did not obtain a warrant, the government agents violated the Fourth Amendment when they obtained the contents of Warshak’s emails. Moreover, to the extent that the SCA purports to permit the government to obtain such emails warrantlessly, the SCA is unconstitutional.

See also EFF’s coverage of the decision. EFF had filed an amicus brief in the case.

Update 2: See Paul Ohm’s commentary and Orin Kerr’s initial commentary.

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