Earlier this week, the Sixth Circuit Court of Appeals (a Federal appeals Court) issued a landmark opinion in the criminal case of United States v. Warshak, finding that individuals have “a reasonable expectation of privacy in their email” and that the Fourth Amendment protects email held by an Internet Service Provider (ISP).
In other words, “[t]he 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.” United States v. Warshak, et al., No. 08-3997, Slip Op. at 23 (6th Cir. Dec. 14, 2010).
As a criminal defense attorney, I’ve been asked the following question many times: To what extent can the police secretly view/obtain your private email? This core question, namely – what are the limits of police surveillance – was answered this week by the Sixth Circuit Court of Appeals in a lengthy opinion (that is hyperlinked above).
On one side of the issue, privacy advocates are pleased as punch with the opinion which holds that the government/police must obtain a search warrant based on “probable cause” before it can search emails stored by Internet Service Providers (ISP’s).
The case involved a Federal Fraud prosecution of Steven Warshak, an Ohio executive, whose company sold an herbal supplement which was touted for its purported ability to increase a man’s, um, physical attributes. Perhaps you’ve seen a commercial or two for this product?
As part of its Fraud investigation, the United States government obtained about 27,000 private emails from Warshak’s Internet Service Providers. Warshak moved to suppress/exclude the emails as evidence, contending that the U.S. government obtained them through an unreasonable search and seizure, in violation of the Fourth Amendment.
People have a “reasonable expectation” that emails will remain private, the Sixth Circuit stated, using some colorful language. “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, law enforcement 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.”
The Sixth Circuit held that Warshak’s constitutional rights were violated when investigators obtained his e-mails without a search warrant.
In a minor side note, the Court upheld his convictions. One of Warshak’s attorneys, Martin Weinberg, told the Associated Press that the Court’s ruling on email-privacy was helpful to his client; however, the Court should have also overturned his convictions.
The Electronic Frontier Foundation hailed the recent Sixth Circuit ruling, saying in a statement that it is the “only federal appellate decision currently on the books that squarely rules on this critically important privacy issue.”
The National Association of Criminal Defense Lawyers also weighed in with praise. “Americans expect and deserve protection from government agents who would snoop into their private communications without probable cause and a court order,” the group said in a statement.
Please remember, this opinion only applies to “government agents.” This opinion will not prevent your wife or girlfriend from snooping into your private email account.