[LINK] 'Government may not need warrant to search your e-mail'

[Roger Clarke]

A key issue before a US court:

"The [US] government [is] arguing that email [is] ... anal[o]gous to 
'e-postcards' that could be read without 'opening' anything [and] 
that Warshak's e-mail was stored on servers belonging to Yahoo and 
other companies, and that this meant it should be easier for them to 
access than if the e-mail was stored only on Warshak's personal 
computer".


http://arstechnica.com/news.ars/post/20061227-8504.html

Government may not need warrant to search your e-mail
12/27/2006 3:07:32 PM, by Nate Anderson

If you've ever watched late-night TV in the US, odds are good that 
you've come across Bob, the suburban everyman who goes from zero to 
hero after taking a product called Enzyte "for natural male 
enhancement." Steven Warshak, the man behind Enzyte and other dubious 
concoctions like Avlimil (for women), made a killing hawking the 
product, but he hasn't been smiling like Bob for some time. That's 
because the US government thinks his business is illegitimate and has 
gone after Warshak and his company in court. In the course of the 
legal battle, the Feds got access to much of Warshak's e-mail without 
a search warrant, and Warshak complained.

Suddenly, the EFF and ACLU found themselves on the side of the Enzyte 
kingpin, arguing a case that could have major ramifications for every 
e-mail user in the country.

Warshak has incurred the wrath of several government agencies, 
including the FTC, the FBI, and the Postal Inspectors (mail fraud). 
The FTC sued him back in January, arguing that he had no evidence 
that his products worked (surprise!) and that his company routinely 
signed up callers for a monthly subscription plan that was difficult 
to cancel. More serious charges were brought in September by federal 
attorneys, who filed a massive, 100+ count indictment against Warshak 
and his associates, alleging mail and wire fraud.

To help prove their case, the government wanted access to Warshak's 
e-mail. They got a court order to access the e-mail accounts in 
question, but they did not get search warrants (court orders have a 
lower burden of proof).

Warshak appealed this on Fourth Amendment grounds, arguing that a 
search warrant should have been required to peek "inside" his mail. 
The government responded by arguing that email was more analgous to 
"e-postcards" that could be read without "opening" anything.

The EFF, the ACLU of Ohio, and the Center for Democracy and 
Technology all filed a brief with the appeals court siding with 
Warshak. They point out that Americans need strong privacy protection 
for email since it is now used "every day for practically every type 
of personal business."

At issue is the Stored Communications Act, a law that gives the 
government easier access to material held by third parties than to 
first-party documents. In this case, the government claimed that 
Warshak's e-mail was stored on servers belonging to Yahoo and other 
companies, and that this meant it should be easier for them to access 
than if the e-mail was stored only on Warshak's personal computer. 
According to court documents seen by Ars Technica, Warshak argues 
that the act is unconstitutional and that users should have the same 
expectations of privacy regardless of who is storing their e-mail.

No decision has yet been made on the email issue. Once it is, 
Warshak's case will proceed in a lower federal court.

-- 
Roger Clarke                  http://www.anu.edu.au/people/Roger.Clarke/

Xamax Consultancy Pty Ltd      78 Sidaway St, Chapman ACT 2611 AUSTRALIA
                    Tel: +61 2 6288 1472, and 6288 6916
mailto:Roger.Clarke at xamax.com.au                http://www.xamax.com.au/

Visiting Professor in Info Science & Eng  Australian National University
Visiting Professor in the eCommerce Program      University of Hong Kong
Visiting Professor in the Cyberspace Law & Policy Centre      Uni of NSW