Appeals court: Email communication is protected under the Fourth Amendment

Appeals court: Email communication is protected under the Fourth Amendment

Summary: An appeals court has ruled that email, like postal mail and telephone calls, is deserving of protection under the Fourth Amendment of the U.S. Constitution.

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An appeals court ruling that may reduce the sentencing for Steve Warshak, the head of a company who was convicted of fraud and other crimes as part of his business to sell "male enhancement" pills, also contained a powerful little nugget that brings the Fourth Amendment of the U.S Constitution into the digital age.

The ruling (PDF) found that the government's seizure of some 27,000 private e-mails, obtained without search warrant from Warshak's Internet service provider as part of the government's investigation, was a violation of the Fourth Amendment, which protects against illegal searches and seizures. In this particular case, however, the court agreed with the government that its agents "relied in good faith on the Stored Communications Act" and that a reversal of the conviction was unwarranted based on the violation.

Still, the ruling is being touted as a landmark decision that puts email correspondence under the same protections of telephone calls and postal mail. From the court ruling:

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.  Much hinges, therefore, on whether the government is permitted to request that a commercial ISP turn over the contents of a subscriber’s emails without triggering the machinery of the Fourth Amendment.

The court ruled that the Fourth Amendment "must keep pace with the inexorable march of technological progress, or its guarantees will wither and perish. The court continued:

If we accept that an email is analogous to a letter or a phone call, it is manifest that agents of the government cannot compel a commercial ISP to turn over the contents of an email without triggering the Fourth Amendment.  An ISP is the intermediary that makes email communication possible.  Emails must pass through an ISP’s servers to reach their intended recipient.  Thus, the ISP is the functional equivalent of a post office or a telephone company.  As we have discussed above, the 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 absent some exception.

The Electronic Frontier Foundation, which posted a copy of the court ruling on its Web site, is calling the ruling a victory in its fight to ensure that email is a privacy-protected form of communication. The EFF wrote:

Today's decision is the only federal appellate decision currently on the books that squarely rules on this critically important privacy issue, an issue made all the more important by the fact that current federal law - in particular, the Stored Communications Act - allows the government to secretly obtain emails without a warrant in many situations. We hope that this ruling will spur Congress to update that law as EFF and its partners in the Digital Due Process coalition have urged, so that when the government secretly demands someone's email without probable cause, the email provider can confidently say: "Come back with a warrant."

Topics: Collaboration, Browser, Government, Government US, Mobility, Telcos

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24 comments
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  • Envelopes

    We as a society have accepted that mail privacy is a given and so confidently put our letters in envelopes to secure them for safe delivery.

    Yet all email travels around the globe as clear text.
    All of the hubbub about privacy in the cloud flies in the face of that fact.

    When will we come around to adopting a standard which protects email and guarantees privacy?

    There are perfectly good encryption methods, GnuPG, PGP, SMIME but there isn't enough incentive to move this issue up on the national agenda as being a top level priority.

    Why, why, why?
    Dietrich T. Schmitz, ~ Your Linux Advocate
    • RE: Appeals court: Email communication is protected under the Fourth Amendment

      @Dietrich T. Schmitz

      SInce we began using STARTTLS, a large percentage of our email is being opportunistically encrypted with compliant servers. So no, not all e-mail travels around the globe as clear text.
      tom.germiat@...
      • RE: Appeals court: Email communication is protected under the Fourth Amendment

        @tom.germiat@...
        Yes, and that must add several microseconds before it scrolls up the monitors at the NSA.
        kenift
      • STARTTLS, unfortunately, does little for you

        @tom.germiat@...
        I think you may have misunderstood STARTTLS. Using STARTTLS for your SMTP connection encrypts the connection between you and the SMTP server, and does NOT encrypt your email either on the first hop server or any other server along the way. Additionally using STARTTLS (or other SSL protocols) on the first hop does not enforce (and therefore does not guarantee) the use of encryption between any other two servers. Therefore, all of the servers listed in the "Received-By:" header in the email received by the recipient almost certainly did not keep the email encrypted on the server itself and possibly (perhaps likely) did not use encryption to transfer the email to the next hop. Using STARTTLS is better than not using anything at all, especially if your SMTP server requires a login, but otherwise adds little additional security and does NOT encrypt the message for the long haul. Therefore, clear text copies of your email likely abound in many different places, even when you use STARTTLS.

        On the other hand, if you encrypt your email, then in theory, only those with the key to decrypt can read it. Unfortunately, few people know how to do that, and even fewer email interfaces in use allow you to do it easily.
        Mr. Copro Encephalic to You
    • RE: Appeals court: Email communication is protected under the Fourth Amendment

      @Dietrich T. Schmitz, Your Linux Advocate

      for the same reason no one encrypts a paper letter before sending it, most are not capable of figuring out how, and even those that are often do not have a guaranteed way to ensure that the recipient will be able to receive it in a usable form. a letter is worthless to the recipient if decoding it is out of their reach.
      erik.soderquist
  • RE: Appeals court: Email communication is protected under the Fourth Amendment

    So is spam filtering a violation of the 4th amendment by the mail administrator and the developers of the anti-spam solution? Since it has to "read" emails coming and going to filter out spam.

    I'm afraid the court's ideas are a bit.....analog.
    VRSpock
    • RE: Appeals court: Email communication is protected under the Fourth Amendment

      @VRSpock No, because they're looking at the headers, not the content. I think of the Post Office refusing to mail something that doesn't meet their standards.
      delerious
      • Exactly . . .

        @delerious <br><br>If your Snail mail doesn't meet the post office's standards, it will be rejected, and returned to the sender if possible. <br><br>If it is illegible, it will not be delivered.<br><br>If it doesn't have a valid return address, it will not be delivered.<br><br>Spam should be subject to some of these standards, particularly the Valid return address . . . That would stop a lot of the spammers, if they were to be deluged with email asking them to stop because they had to provide a valid return email address, not a spoofed one, etc. . . .
        JLHenry
      • RE: Appeals court: Email communication is protected under the Fourth Amendment

        @delerious
        Google does read the content of the email though to give the user ads. I'm pretty sure they do,they off course say no human eyes view them HAHAHAHAHAHA. so sue me if I'm wrong :}
        Stan57
      • Google

        @delerious Google does more than read your email to display ads - everytime you click a hyperlink in one of your emails they vector that to their servers so they can log your activity before forwarding you where you thought you were going

        That sure sounds like a privacy violation - I no longer use their web interface as a result
        archangel9999
      • RE: Appeals court: Email communication is protected under the Fourth Amendment

        @JLHenry Actually, the post office does not require a return address at all (legible or otherwise) and will deliver the mail just fine.
        dabble53
    • RE: Appeals court: Email communication is protected under the Fourth Amendment

      @VRSpock The 4th amendment applies to government search and seizure. Regardless, as a condition of using a particular service you can agree to have your messages filtered, so on two levels you're wrong.
      snoop0x7b
    • RE: Appeals court: Email communication is protected under the Fourth Amendment

      @VRSpock Reading the Email isn't necessary for SPAM filtering. Subject matter and where it is coming from is sufficient. Why do you think so many filters depend on the recipients designating it as SPAM ? Because automatics filters don't read the actual Email, they scan the from header or subject line.
      Nemesis2All
  • But it's cool to do full body pat downs at airports to patrons

    who get uppity about going through a naked body scanner.
    frgough
    • RE: Appeals court: Email communication is protected under the Fourth Amendment

      @frgough If somebody actually wants to see my body naked, why should I be upset? No laughing though. That's the deal. ;)
      JoeFoerster
  • RE: Appeals court: Email communication is protected under the Fourth Amendment

    If your sooo worried about those damn scanners, or some TSA agent copping a feel, don't fly....dah?<br>I'd rather everyone board the plane naked as to have a bomb on it. I really don't want my day ruined by flying into the ground a several hundreds of miles per hour.<br>As for e-mail....yes, it should be protected just like usps mail. In a few years letters the old fashioned way will cease to be.
    rolnmrbl@...
    • Really?

      @rolnmrbl@... Those willing to forego personal liberty and privacy for the illusion of additional protection deserve no liberty, privacy, nor protection

      Do you really think TSA has a clue what they're doing? Everything they do is a knee jerk reaction by a bunch of people clueless about how to adequately secure air travel
      archangel9999
    • RE: Appeals court: Email communication is protected under the Fourth Amendment

      @rolnmrbl@... I agree with you ! All these people want security (Scanners at Airports) but don't want to comply with rules to help security. As far as the Post Office, the only thing they require is that the package or letter has a delivery address, is packaged right and has the correct postage.
      Nemesis2All
  • RE: Appeals court: Email communication is protected under the Fourth Amendment

    This ruling was long overdue and thanks. Agree with Mr. D. Schmitz above.
    LinuxPops
  • RE: Appeals court: Email communication is protected under the Fourth Amendment

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    ITOdeed