The Secure Times

An online forum of the ABA Section of Antitrust Law's Privacy and Information Security Committee

Court of Appeals Determines E-Mail Deserves Fourth Amendment Privacy Protection

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On December 14, 2010, the Court of Appeals for the Sixth Circuit determined that the Department of Justice should have obtained a search warrant before seizing and searching e-mails from a service provider, holding that e-mails are analogous to letters or telephone calls and deserve Fourth Amendment protection.

In U.S. v. Warshak, the Department of Justice issued a subpoena ordering the defendant’s e-mail provider (NuVox) to prospectively preserve copies of Warshak’s future e-mails. Subsequently, the government obtained Warshak’s stored e-mails from NuVox, basing its actions on the Stored Communications Act, which the government argued allows it to obtain e-mails already in storage with an e-mail provider without a search warrant in many situations (e.g., the law affords different levels of privacy protection to e-mails depending on where they are stored and how long they have been in storage). Despite the provisions in the Stored Communications Act, the Sixth Circuit determined that e-mails, like letters or telephone calls, deserve Fourth Amendment protection. Accordingly, the Department of Justice should have obtained a search warrant based on probable cause before seizing Warshak’s e-mails from his service provider.

The Sixth Circuit’s decision in U.S. v. Warshak is available here.

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Author: ABA Antitrust

Learn more about the ABA Section of Antitrust Law: http://ambar.org/antitrust

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