Wednesday, December 15, 2010

Court: Emails Protected by Fourth Amendment

An important new case about the Fourth Amendment and e-mails.

The Federal Sixth Circuit Court of Appeals has held that government agents violated the Defendant's Fourth Amendment rights by compelling his e-mail provider to turn over emails without first obtaining a warrant. A copy of the opinion is here. You can read news/summaries here and here.

(The court did not suppress the evidence, because the agents relied in good faith on provisions of the Stored Communications Act. I won't get into this aspect of the decision today.)

In this case, the government seized approximately 27,000 of the defendant's private emails. The government acted pursuant to the Stored Communications Act, which permits the government to obtain e-mails that are "in electronic storage" without obtaining a warrant.

The email provider had been preserving copies of the defendant's incoming and outgoing emails in response to a preservation request by the government, and turned them over without providing notice to the defendant.

The court held that the Fourth Amendment applied, and a warrant was required. The defendant clearly intended that "his emails would be shielded from outside

scrutiny." This is probably not very controversial. The important question, however, is whether that expectation of privacy is one society is prepared as reasonable.

The opinion notes how much of a person's life can be revealed by e-mails:

Since the advent of email, the telephone call and the letter have waned in importance, and an explosion of Internet-based communication has taken place. People are now able to send sensitive and intimate information, instantaneously, to friends, family, and colleagues half a world away. Lovers exchange sweet nothings, and businessmen swap ambitious plans, all with the click of a mouse button. Commerce has also taken hold in email. Online purchases are often documented in email accounts, and email is frequently used to remind patients and clients of imminent appointments. In short, "account" is an apt word for the conglomeration of stored messages that comprises an email account, as it provides an account of its owner's life. By obtaining access to someone's email, government agents gain the ability to peer deeply into his activities.

The court concluded that, like letters and phone calls, "email requires strong protection under the Fourth Amendment." The fact that the emails were stored maintained and stored by a third party was irrelevant to this analysis – this email provider was thought to be like the Post Office.

The most important aspect of the decision, to me, is that the court recognized that electronic communications are not like traditional business records – bank records, phone call records, etc . . . – because of the amount of information that can be revealed about a person.

This is an important decision. The recognition that the government's attempts to obtain a significant amount of information about a person triggers Fourth Amendment protections is similar to the broader theme apparent in cell phone and GPS tracking cases.

More to follow.

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