A recent court decision cites Fourth Amendment search and seizure provisions to protect e-mail privacy.
In a case that could potentially alter the legal definition of online privacy, the Sixth Circuit Court of Appeals ruled that government officials must first obtain a warrant before seizing e-mails stored by an Internet service provider.
In United States vs. Warshak, the defendant, Steven Warshak, had originally been sentenced to 25 years in jail for several crimes that involved deceptive business practices committed by his company, which marketed and sold Enzyte, a male-enhancement drug that aired the "Smilin' Bob" advertisements.
Warshak and his attorney appealed the decision, arguing that Warshak's right to privacy was abused when the government seized about 27,000 e-mails without a warrant.
In its decision, the court noted, "Given the fundamental similarities between e-mail and traditional forms of communication, it would defy common sense to afford e-mails lesser Fourth Amendment protection."
The brief continued, "The government may not compel a commercial ISP to turn over the contents of a subscriber's e-mails 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 e-mails."
While the case does not directly affect how employers treat their e-mail policies—employers are still freely entitled to monitor company e-mail—those who champion online civil rights say this a momentous case for Internet privacy.
"It's a landmark decision that's a long time coming," said Kevin Bankston, a senior staff attorney for the Electronic Frontier Foundation. "Just as the government needs a search warrant if it wants to come into your home, open your mail or listen to your phone calls—it needs a warrant if it wants to seize the contents of your Gmail or Yahoo account."
This decision also sets a precedent for e-mail providers to protect their users from unlawful infringement on private information, and brings to light certain provisions of the Electronic Communications Privacy Act of 1986 (ECPA) that some have argued has not responded fast enough to recent changes in technology.
Bankston says U.S. vs. Warshak is particularly important to the extent that it will spur Congress to update the federal statutes that, in some cases, do allow warrantless searches of e-mail. "Now that the court has found the ECPA statute unconstitutional, that will bolster efforts to get ECPA reformed in a way that reflects 21st century technology."
Though changes in technology may move faster than changes in the law, recent court opinions suggest that courts are beginning to offer stern protection for data stored in the cloud. In August, Judge James Orenstein, a United States Magistrate Judge for the Eastern District of New York, asserted that the Fourth Amendment protects information retrieved from cell phones, too.
"Simply put, there is no reason to think that the advance of technology brings with it an expectation that privacy is lost," Judge Orenstein wrote. "Rather, I assume that it serves only to increase awareness of the importance of privacy and to whet the appetite for ways to manage it."