Warshak v. United States, No. 06-4092 (6th Cir. June 18, 2007)
Lawyers and their clients concerned with e-mail privacy issues will want to know that the Sixth Circuit recently held that the government must obtain a search warrant to get e-mail records held by internet service providers. This is the first time this issue has reached the federal appellate level, and it is far from permanently resolved.
At issue was the Stored Communications Act, a 1986 federal law which permits the government to access the content of e-mail more than 180 days old without complying with the Fourth Amendment's required showing of probable cause that the e-mail was evidence of a crime. The court held that senders and recipients maintained an expectation of privacy in e-mail, similar to telephone conversations or letters sent through the postal service or private carrier. While the government could overcome this presumption with specific evidence that the expectation was unreasonable (say, by warnings given by the ISP or an employer), absent such a showing the government can access e-mail content only with a search warrant or prior notice to the account holder, who has the right to object to the disclosure.
The case stands a good chance of reaching the Supreme Court if the government decides to seek review of the ruling there.
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