Government Needs A Warrant To Look At Private E-mails, Court Rules

When it comes to law-enforcement investigations, the government has long treated e-mail differently than telephone and postal communications. Government authorities routinely can obtain people’s personal e-mails with a simple subpoena — while they are still required to get a warrant to tap people’s phones or read their snail-mail. But thanks to a new court ruling, getting access to those e-mails may become a little tougher.

In a landmark ruling [PDF] today at the U.S. Court of Appeals for the 6th Circuit, a three-judge panel held that that a criminal defendant had a right to privacy in his e-mails, and that in order to get access to them, law-enforcement agents investigating him should have obtained a warrant signed by a judge. Currently, federal law allows the taking of e-mails in many situations without a warrant or other showing of probable cause.

It’s a victory for privacy advocates, many of whom have long held that the government should have to get a search warrant to collect electronic communications-just as they would in order to search physical “snail” mail or tap a telephone. Today’s ruling in U.S.A. v. Steven Warshak is the first appellate-level decision that makes clear that a warrant is indeed required to read e-mail. The government typically would go to an e-mail service provider with such a request, but it could be aimed at any entity that handles e-mail, such as an employer or ISP.

It’s common for government authorities to use subpoenas, rather than warrants, to obtain e-mails, even though privacy advocates have objected to this practice. While service providers exhibit various levels of compliance with that strategy, privacy advocates, including the groups that briefed this case, say companies often comply with subpoenas.

Unlike subpoenas, warrants must be signed by a judge, and the authorities seeking the warrant must usually show “probable cause” if the case is a criminal matter. The finding that obtaining e-mails without a warrant is a violation of the Fourth Amendment will change the rules right away in the sixth circuit, which encompasses Kentucky, Tennessee, Ohio and MIchigan.

The case against Warshak involved an alleged “massive fraud” in a supplement business that sold “enzyte,” a penile-enhancement formula. As part of the investigation against Warshak, the government obtained 27,000 of his private e-mails without first getting a warrant. In today’s ruling, the court held that was a violation of Warshak’s Fourth Amendment rights. The court upheld Warshak’s conviction despite the government’s Constitutional violation, but it did vacate his 25-year prison sentence and sent his case to a lower court for re-sentencing.

This decision by the 6th Circuit won’t be binding on judges outside of that circuit, although many may choose to look to this decision for guidance. In order to make a rule that police must always get warrants to collect e-mail binding nationwide, either a Supreme Court decision or action by Congress would be required. Attorney Kevin Bankston, who wrote a brief last year for the Electronic Frontier Foundation and the ACLU of Ohio opposing the government’s e-mail grab in the Warshak case, wrote in a blog post today that he hopes the Warshak case spurs Congress to update federal privacy laws to make clear that a warrant is required in order for the government to gather e-mails.

»  Read Decision in U.S.A. v. Warshak [PDF]