The US Court of Appeals for the Sixth Circuit ruled [opinion, PDF] Tuesday that e-mail is entitled to Fourth Amendment protection. The 98-page opinion overturned the prison sentence of Steven Warshak, the founder of Berkeley Premium Nutraceuticals Inc, who was convicted on 93 counts of conspiracy, money laundering and fraud in 2008. The court held that government reliance on the Stored Communications Act did not warrant overturning Warshak's conviction, but that the government violated Warshak's Fourth Amendment rights when it ordered his Internet service provider (ISP) to turn over his e-mails. In finding this violation, the court acknowledged that Warshak enjoyed "a reasonable expectation of privacy" in his e-mails by comparing e-mail to more traditional forms of communication, such as telephone conversations, found to be protected in United States v. Katz. The court stated:
Given the fundamental similarities between email and traditional forms of communication, it would defy common sense to afford emails lesser Fourth Amendment protection. Email is the technological scion of tangible mail, and it plays an indispensable part in the Information Age. 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.
The case was ultimately remanded for a recalculation of Warshak's prison sentence, but his conviction and $45 million fine were affirmed.
The application of the Fourth Amendment to new technologies has created a number of issues that have recently come before the courts. In late November, the US Court of Appeals for the District of Columbia Circuit declined a request by the US Department of Justice to rehear a case in which that court found that the government could not use GPS to track suspects without a warrant. In September, a three-judge panel for the US Court of Appeals for the Third Circuit ruled that at times the government might need a warrant to obtain cell phone data to track a person's location. In June, the US Supreme Court unanimously held that, even if there is a reasonable expectation of privacy in work-issued electronic devices, that an employer's search of private text messages does not violate the Fourth Amendment so long as the search is not excessive and is pursuant to a legitimate work-related purpose. Last year, the Ohio Supreme Court ruled that police must obtain a warrant before searching data stored in a cell phone.And we all know how the rightwing assholes at the Supreme Court are going to rule on this one.