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Fourth Amendment Protects E-Mail, Appeals Court Rules

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  • Greg Cannon
    http://news.yahoo.com/s/nf/20101215/tc_nf/76520;_ylt=AiwA_dV79ipzui2JlnKrFnBn.3QA;_ylu=X3oDMTJ1ZG5sNnRsBGFzc2V0Ay9zL25mLzIwMTAxMjE1L3RjX25mLzc2NTIwBGNjb2RlA3Jh
    Message 1 of 1 , Dec 15, 2010
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      http://news.yahoo.com/s/nf/20101215/tc_nf/76520;_ylt=AiwA_dV79ipzui2JlnKrFnBn.3QA;_ylu=X3oDMTJ1ZG5sNnRsBGFzc2V0Ay9zL25mLzIwMTAxMjE1L3RjX25mLzc2NTIwBGNjb2RlA3JhbmRvbQRjcG9zAzkEcG9zAzkEc2VjA3luX3RvcF9zdG9yaWVzBHNsawNmb3VydGhhbWVuZG0-

      Fourth Amendment Protects E-Mail, Appeals Court Rules

      Jennifer LeClaire, newsfactor.com
      Wed Dec 15, 5:03 pm ET

      Call it a landmark decision. In an appeal of U.S. vs Warshak in the Court of Appeals for the Sixth Circuit, the judges have ruled that the government needs a search warrant before it can covertly seize and search e-mails stored by e-mail service providers.
      In the controversial case that could have widespread implications, the court decided that e-mail users have the same reasonable expectation of privacy in their stored e-mail as they do in their phone calls and postal mail.
      Appeals Court Speaks
      "Given the fundamental similarities between e-mail and traditional forms of communication [like postal mail and telephone calls], it would defy common sense to afford e-mails lesser Fourth Amendment protection ..." the court wrote. "It follows that e-mail requires strong protection under the Fourth Amendment; otherwise the Fourth Amendment would prove an ineffective guardian of private communication, an essential purpose it has long been recognized to serve."
      "[T]he 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," the ruling said. "It only stands to reason that, if government agents compel an ISP to surrender the contents of a subscriber's e-mails, those agents have thereby conducted a Fourth Amendment search, which necessitates compliance with the warrant requirement."
      One of a Kind
      According to the Electronic Frontier Foundation, the decision is the only federal appellate decision that squarely rules on e-mail privacy. The EFF said the issue is made all the more important by the fact that current federal law -- in particular, the Stored Communications Act -- allows the government to secretly obtain e-mails 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 e-mail without probable cause, the e-mail provider can confidently say: 'Come back with a warrant,'" said Kevin Bankston, a senior staff attorney at EFF.
      Constitution Adapts
      Marc Rotenberg, executive director of the Electronic Privacy Information Center, called the ruling a good and important decision. As he sees it, the ruling helps answer a critical question in the world of e-mail -- which is whether there is Fourth Amendment protection for e-mail beyond what a federal statute provides.
      "The Sixth Circuit has found that, yes, there is constitutional protection for stored e-mail communication, which is sensible, of course, because people do have an expectation of privacy of confidential messages, whether transmitted through a wire or through an envelope," Rotenberg said.
      He doesn't expect the government to appeal the decision, but he also doubts these types of issues will go away because constant evolution of messaging networks and new technologies will pose new legal challenges.
      "I do think we should be guided by the Constitution," Rotenberg said. "The Constitution adapts to new practices. If we are sending personal messages by e-mail as opposed to the Pony Express, we should still have constitutional safeguards."
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