Wednesday, December 22, 2010, 12:13 PM

Sixth Circuit Finds Reasonable Expectation of Privacy in E-Mails Stored in or Sent through a Commercial ISP

The United States Court of Appeals for the Sixth Circuit has ruled that the government must obtain a search warrant to intercept and read e-mails. In U.S. v. Warshak, Case 08-3997, the Sixth Circuit addressed the right of a private individual to maintain private e-mail accounts free from warrantless searches and seizures. The case may have significant implications on business as, for the first time, a U.S. Federal Appeals Court held that the Constitution protects individual privacy rights in e-mails. Such rights may extend to e-mails managed by employers in certain situations.

The Court found that the e-mails of a suspect in a fraud investigation were protected by the Fourth Amendment because (1) the suspect had “plainly manifested” an expectation of privacy in his e-mails (shown in part through the damaging nature of the information obtained from the e-mails and (2) his expectation of privacy was “reasonable,” as e-mail is fundamentally similar to traditional protected forms of communication (like letters). Therefore, the Court held, the government violated the Fourth Amendment by accessing e-mails from his internet service provider (“ISP”) without a warrant.

The Court noted that a subscriber agreement between an ISP and a consumer could potentially be so broad as to “snuff out” a reasonable expectation of privacy if, for example, the ISP “expresses an intention to audit, inspect, and monitor” its customer’s e-mails. However, in the absence of such language, an ISP may not be compelled to turn over its subscribers’ e-mails. The Court noted that an ISP, as the intermediary facilitating e-mail transfer, does not have the same right to disclose this information as the recipient would.

This case has far-reaching implications for the treatment of e-mails by the courts. In Warshak, the government had claimed that, even if it had violated the Fourth Amendment in obtaining the e-mails, law enforcement agencies should be protected by relying on the Secured Communications Act (“SCA”), which permits compelling disclosure of electronic communications through an administrative subpoena or a court order. The Court found that, to the extent that the SCA purports to allow the government access to obtain e-mails stored in or sent through a commercial ISP from the ISP, the SCA is unconstitutional.

While this case does not address the right of an employer to access e-mails, through personal or corporate accounts, the implications of this decision are clear. It would be easy for a court to extend this decision to find that, absent clear language to the contrary, any expectation of an e-mail user of privacy in his or her e-mails is reasonable. In the future, employers and others with access to e-mail accounts of others may be prohibited from warrantless searches of their e-mails. As the Court held, “the mere ability of a third-party intermediary to access the contents of a communication cannot be sufficient to extinguish a reasonable expectation of privacy.”


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