Appeals court: Email communication is protected under the Fourth Amendment

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."