Opinion Forum

Does the Fourth Amendment Apply to Emails?

December 21st, 2010

Yes, says the Sixth Circuit. But the consequences remain murky.

In U.S. v. Warshak, the United States Court of Appeals for the Sixth Circuit held that email correspondence enjoys substantially the same expectations of privacy and therefore of Fourth Amendment protections as do snail mail and telephone conversations. Warshak was a criminal case involving many millions of dollars and substantial fraud against numerous customers. Electronic communications, including some twenty-seven thousand emails, were important to the prosecution’s case.

The court held that:

The government may not compel a commercial ISP [internet service provider] to turn over the contents of a subscriber’s emails without first obtaining a warrant based on probable cause. Therefore, because they did not obtain a warrant, the government agents violated the Fourth Amendment when they obtained the contents of Warshak’s emails. Moreover, to the extent that the SCA [Stored Communications Act] purports to permit the government to obtain such emails warrantlessly, the SCA is unconstitutional. (emphasis added)

Two essential tests were employed in determining Fourth Amendment applicability. First, whether the criminal defendant had a reasonable expectation of privacy, and second, whether society in general recognizes one. The court found:

Given the often sensitive and sometimes damning substance of his emails, we think it highly unlikely that Warshak expected them to be made public, for people seldom unfurl their dirty laundry in plain view.

As to the second test, the court found that:

This question is one of grave import and enduring consequence, given the prominent role that email has assumed in modern communication. Cf. Katz, 389 U.S. at 352 (suggesting that the Constitution must be read to account for “the vital role that the public telephone has come to play in private communication”). Since the advent of email, 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 email. Online purchases are often documented in email accounts, and email 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 email account, as it provides an account of its owner’s life. By obtaining access to someone’s email, government agents gain the ability to peer deeply into his activities.

The court drew a further analogy to telephone conversations, noting that they are “fully protected by the Fourth and Fourteenth Amendments” even though telephone companies have the capability to monitor and record calls. The court drew a similar analogy to snail mail, stating:

While a letter is in the mail, the police may not intercept it and examine its contents unless they first obtain a warrant based on probable cause. This is true despite the fact that sealed letters are handed over to perhaps dozens of mail carriers, any one of whom could tear open the thin paper envelopes that separate the private words from the world outside. Put another way, trusting a letter to an intermediary does not necessarily defeat a reasonable expectation that the letter will remain private.

Given the fundamental similarities between email and traditional forms of communication, it would defy common sense to afford emails lesser Fourth Amendment protection. … Over the last decade, email has become “so pervasive that some persons may consider [it] to be [an] essential means or necessary instrument for self-expression, even self-identification.” It follows that email 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. (Internal citations omitted)

It is noted here that:

Today’s decision is the only federal appellate decision currently on the books that squarely rules on this critically important privacy issue, an issue made all the more important by the fact that current federal law — in particular, the Stored Communications Act –allows the government to secretly obtain emails without a warrant in many situations.

However, it wasn’t quite that simple in the Warshak case nor may it be in subsequent cases in different circuits.

Continue reading this article at Pajamas Media »

Articles written by Dan Miller
Tags: 4th Amendment, court decision, e-mail, mail, privacy, SCA, telephone
Categories: Law, News, Politics | Comments (2) | Home

2 Responses to “Does the Fourth Amendment Apply to Emails?”

Tom Carter | December 22nd, 2010 at 11:09 am

Aside from the ins and outs of the law, I’ve never thought I had much of an expectation of privacy where e-mail is concerned. It goes through too many nodes and can be seen by too many people if they try hard enough to see it. Snail mail, on the other hand, goes from the writer into the postal system, a trusted agent, and is delivered to the recipient. One excellent rule to live by, that I learned the hard way a few times, is to never put anything in writing that you wouldn’t want to read in the newspaper later.

There’s also an issue that I think is pretty well settled that the business that owns your computer and pays for the internet connection has a right to read your e-mail and anything else you put on the computer. So there’s a big difference between e-mail you send at work and e-mail you send from your computer at home.

All things considered, I’d be happy to see ISPs prohibited from releasing e-mails unless they are presented with a warrant. Still, anyone who puts a lot of sensitive private information into e-mails is asking for trouble.

Dan Miller | December 22nd, 2010 at 11:48 am

Tom,

The Fourth Amendment limits what the federal government and its multiple entities can do; via the Fourteenth Amendment those limits apply to state governments and their multiple entities.

The Fourth Amendment does not limit what private employers or other private entities can do. As to a computer owned by a private business and internet connection paid for by the business, an employee has no legitimate expectation of privacy as against that business in that context and it would be foolish to assume that such e-mails are protected from the employer. For that reason and based on the rationale of the Warshak decision, I doubt that in the event of governmental interception and use of an e-mail sent in those circumstances a legitimate expectation of privacy would be held to exist.

It’s an evolving area of the law and there are all sorts of imaginable permutations. What about a government employee who sends “private” e-mails via a government owned computer? I might be able to come up with arguments both ways meeting the “laugh test” and therefore not likely to be thrown out of court off hand, but I have no idea what the ultimate decision would be.

I agree that it’s best to avoid sending e-mails no matter what the circumstances with stuff one would not like to see made publicly available. Various encryption software might help but I doubt it.

In any event, it’s good to see a federal court giving effect, no matter how tenuous, to the Fourth Amendment.