Emails deserve the same privacy protections afforded to snail mail and telephone calls by the Fourth Amendment, according to a ruling just released by the U.S. Sixth Circuit Court of Appeals in the criminal appeal of Warshak v. U.S. As with traditional mail and phone conversations, the government must obtain proper search warrants to carry out investigations that uncover personal conversations.
The Electronic Frontier Foundation (EFF) and other civil liberties groups filed an amicus brief in the case back in June 2008, urging the court to take the position it has accepted today. Naturally, the EFF celebrated the ruling by breaking the news in the past hour.
As the EFF and its affiliates had argued in that 2008 brief, the Department of Justice had overstepped its powers in ordering the email provider of defendant Stephen Warshak to "preserve" copies of his emails, which the government later obtained through a court order. Relative to warrants, court orders are easy to acquire.
From the ruling:
Given the fundamental similarities between email and traditional forms of communication [like postal mail and telephone calls], it would defy common sense to afford emails lesser Fourth Amendment protection.... It follows that email requires strong protection under the Fourth Amendment; otherwise the Fourth Amendment would prove an ineffective guardian of private communication, an essential purpose it has long been recognized to serve....
[T]he police may not storm the post office and intercept a letter, and they are likewise forbidden from using the phone system to make a clandestine recording of a telephone call--unless they get a warrant, that is. It only stands to reason that, if government agents compel an ISP to surrender the contents of a subscriber's emails, those agents have thereby conducted a Fourth Amendment search, which necessitates compliance with the warrant requirement....
Sometimes it seems like the openness and frontier-like nature of the Web is slowly deteriorating, especially as Web services become increasingly mainstream. Facebook and Twitter struggle every day with sticky situations involving free speech and the government, specifically organizations seeking to maintain law and order, cannot now ignore the wealth of data available online. But at least one major group, the Department of Justice, has been misled to think that the openness of the Web includes the right of the government to spy on digitally shared personal data without warrants.
Here’s a little history refresher for all of you who haven’t seen a single word of the U.S. Constitution since middle school. The Fourth Amendment:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The Framers of the Constitution may not have had the foresight to envision a form of communication as intangible as email, but, if they had, it’s almost certain they would have rewritten the amendment to begin, “The right of the people to be secure in their persons, houses, papers, and effects, electronic or otherwise...”