US Appeals court: Feds need warrants for e-mail

Rebuffing the Justice Department, judges insist on warrants because e-mail records give police "the ability to peer deeply" into someone's activities.
Written by Declan McCullagh, Contributor

U.S. police must obtain search warrants before perusing Internet users' e-mail records, a federal appeals court ruled Tuesday in a landmark decision that struck down part of a 1986 law allowing warrantless access.

In case involving a penile-enhancement entrepreneur convicted of fraud and other crimes, the Sixth Circuit Court of Appeals said that the practice of warrantless access to e-mail messages violates the Fourth Amendment, which prohibits "unreasonable" searches and seizures.

"Given the fundamental similarities between e-mail and traditional forms of communication, it would defy common sense to afford e-mails lesser Fourth Amendment protection," the court ruled in an 3-0 opinion written by Judge Danny Boggs, a Reagan appointee.

The court affirmed the conviction of Steven Warshak, who was charged with defrauding customers of his "natural male enhancement" pills, but sent his case back to a lower court for a new sentence. Warshak remains liable for a US$44 million money laundering judgment as well.

"The most significant thing from our perspective and that of the victims is that they upheld all the convictions against Mr. Warshak and that they affirmed the US$400 million-plus forfeiture order," a spokesman for the U.S. Attorney's office in Ohio, which prosecuted this case, told ZDNet Asia's sister site CNET.

Warshak owned Berkeley Premium Nutraceuticals, a mail order company that in 2001 launched Enzyte, which claimed, in the delicate words of the court, "to increase the size of a man's erection". Enzyte was a remarkable success: by the end of 2004, Berkeley employed 1,500 people and rang up about US$250 million in annual sales.

Today's decision striking down part of the 1986 Stored Communications Act rebuffs arguments made by the U.S. Department of Justice, which insisted the law was constitutional. In a brief filed during an earlier phase of the case, prosecutors argued that the Fourth Amendment doesn't apply because "compelled disclosure of e-mail is permissible under most providers' terms of service'".

Since 1986, the general rule has been that police could obtain Americans' e-mail messages up to 180 days old only with a warrant. Older messages, however, could be accessed with an administrative subpoena or what's known as a 2703(d) order, both of which lack a warrant's probable cause requirement.

The Stored Communications Act--which created the 2703(d) orders--was enacted at a time when e-mail was the domain of a small number of academics and business customers. Telephone modems, BBSs, and UUCP links were used in that pre-Internet era that was defined by computers like the black-and-white Macintosh Plus and services like H&R Block's CompuServe.

Since then, the Sixth Circuit ruled, technological life has changed dramatically:

Since the advent of e-mail, 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 e-mail. Online purchases are often documented in e-mail accounts, and e-mail 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 e-mail account, as it provides an account of its owner's life. By obtaining access to someone's e-mail, government agents gain the ability to peer deeply into his activities.

Even though the law is unconstitutional, the court concluded, Warshak's conviction should be upheld because police relied "in good faith" on their interpretation of the surveillance law. (In a concurring opinion, Judge Damon Keith, a Clinton appointee, wrote he was troubled by the Justice Department's "back-door wiretapping" procedures in this case, but agreed with the decision to uphold the conviction.)

Orin Kerr, a law professor at George Washington University who has written extensively about electronic surveillance, called today's decision "correct" and "quite persuasive".l

Kevin Bankston, an attorney at the Electronic Frontier Foundation who wrote an amicus brief in this case, called it a key decision because it's the "only federal appellate decision currently on the books that squarely rules on this critically important privacy issue."

This article was first published as a blog post on CNET News.

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