Federal Court Ruling Boosts Laws About Email Privacy   6/22/2007 - 4,356 views,

In the government’s case against Steven Warshak and his Berkeley Premium Nutraceuticals, which marketed a “natural male enhancement” product called Enzyte using web- and Internet-based marketing, the Court found that “e-mail users maintain a reasonable expectation of privacy in the content of their e-mails.”

At issue was a clause of the Stored Communications Act (SCA) which generally holds that the government must either give a person prior notice, or have a search warrant, before it can seize their email. The clause at issue is an exception which states that prior notice is not necessary if the seizure of the stored email is pursuant to a criminal investigation, which the investigation against Warshak was (Warshack is charged with criminally defrauding people out of as much as $100 million.) However, the Court found that the exception outlined in the SCA requires a court order for the seizure. In the Warshak case the government had neither a warrant nor a court order, yet insisted that the ISP from which they seized Warshak’s email not notify Warshak of the seizure.

In the unanimous ruling, the Court, led by Judge Boyce Martin, stated that “It goes without saying that like the telephone earlier in our history, e-mail is an ever-increasing mode of private communication, and protecting shared communications through this medium is as important to Fourth Amendment principles today as protecting telephone conversations has been in past.”

The government argued that email is screened without the recipient or sender’s knowledge all the time when it is filtered for spam, screened for illegal adult material, and the like.

The Court quickly dispatched this argument, however, holding that “The reasonable expectation of privacy of an e-mail user goes to the content of the e-mail message. The fact that a computer scans millions of e-mails for signs of pornography or a virus does not invade an individual’s content-based privacy interest in the e-mails and has little bearing on his expectation of privacy in the content. In fact, these screening processes are analogous to the post office screening packages for evidence of drugs or explosives, which does not expose the content of written documents enclosed in the packages.”

Kevin Bankston an attorney with the Electronic Frontier Foundation, cheered the decision, explaining that “Email users expect that their Hotmail and Gmail inboxes are just as private as their postal mail and their telephone calls. The government tried to get around this common-sense conclusion, but the Constitution applies online as well as offline, as the court correctly found. That means that the government can’t secretly seize your emails without a warrant.”