Yet another Court of Appeals upholds 4th Amendment rights in

[Ethan Ackerman]

email

Greetings Dave,

Today a very significant opinion was decided by the 6th Circuit
(Warshak v. US,
http://www.ca6.uscourts.gov/opinions.pdf/07a0225p-06.pdf ) upholding
4th Amendment protections for emails.  The 6th Circuit ruled, agreeing
with an amicus brief filed by EFF, that "A [government] seizure of
e-mails from an ISP, without either a warrant supported by probable
cause, notice to the account holder to render the intrusion the
functional equivalent of a subpoena, or a showing that the user
maintained no expectation of privacy in the e-mail, amounts to" a 4th
amendment violation.  This case is doubly important because the
government primarily argued that the 4th Amendment shouldn't matter,
as it complied with most (but not all) of the relevant administrative
subpoena statute, with its lesser standards of proof.

Details: US statutes offer some privacy for emails, based on
distinctions like 'sent' vs. 'in transit' vs. 'stored' vs. 'read or
unread.'  These categories, their standards of proof and the
protections they offer, are hotly debated themselves - see a past
debate on IP between the current Administration's Stewart Baker and
professor Petwer Swire -
http://www.interesting-people.org/archives/interesting-people/200407/ 
msg00019.html

Because the US has several statutes (the Wiretap Act, ECPA, etc.) that
protect some emails and computer uses, most cases never have to
address the 4th Amendment issue.  The case can be decided just based
on whether the statute was followed.  A recent case, Councilman, may
be familiar to readers as an example of a case that involved the
intricacies of these statutes.   But the issue has always been lurking
as to whether or not there is additional 4th Amendment protection
above and beyond the statutes - especially as amendments (like the
Patriot Act) have pared back the protections or standards in these
statutes.  The
court today signaled there clearly is independent 4th Amendment
protection, and ruled that some portions of ECPA were constitutionally
inadequate.

Coverage on legal blogs has just started, I suspect there's more  
coming -

http://www.eff.org/legal/cases/warshak_v_usa/

http://volokh.com/posts/1182181742.shtml

http://howappealing.law.com/061807.html#026198


-Ethan


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