U.S. v. Warshak: Court protects email privacy under the 4th Amendment

By Thomas Yohannan


The Sixth Circuit Court of Appeals handed down an important decision that affords emails protection under the Fourth Amendment.  The amendment protects citizens from unreasonable searches and seizures.  In U.S. v Warshak, the court ruled that although an internet service provider (ISP) has access to private emails, the government must obtain a search warrant before it may seize and search such emails.  

The Sixth Circuit ruling also declares part of the Stored Communications Act (SCA) of the Electronic Communications Privacy Act unconstitutional.  18 U.S.C. 2703(b) allows the government to obtain email messages with less than a search warrant. The SCA has been widely criticized by the Digital Due Process coalition for allowing government access to emails without a search warrant.  


The issue that the court dealt with in this case was the expectation of privacy that is afforded to email hosted on a remote server.  The court said:


“Given the fundamental similarities between email and traditional forms of communication [like postal mail and telephone calls], it would defy common sense to afford emails lesser Fourth Amendment protection.... 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....”


It was an important decision providing protections for internet users’ online privacy in the area of emails, and articulates that the Fourth Amendment provides important limitations to the government’s ability to access private lives of its citizens, and those limits extend online. Further, the decision may nudge Congressional onlookers to amend the SCA so that a search warrant is required. 

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