[LINK] Warrant/Sub Poena Protection for Email

[Roger Clarke]

            http://www.epic.org/alert/EPIC_Alert_14.13.html

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[5] Court Finds Email Private, Enjoys Fourth Amendment Protection
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On June 16, the Sixth Circuit court of appeals ruled that portions of
the Stored Communications Act violate the Fourth Amendment protection
from unreasonable searches and seizures.  In Warshak v. United States,
the court found that an individual has a reasonable expectation of
privacy in the emails one has stored at an ISP. Therefore, the court
held, when the government seeks to obtain the contents of emails stored
at an ISP, it must either use a warrant or notify the owner of the email
account that a subpoena has been issued.

Steven Warshak was under investigation for violating several federal
laws. During this investigation the government sent subpoenas to his
ISPs requesting his subscriber account information as well as the
contents of some of his emails. The orders were issued under seal, but
Warshak was later notified of their existence when they were unsealed.
Warshak then sued the government asking for an order declaring this
access unconstitutional and preventing the government from further
accessing his emails. A federal judge in Ohio granted Warshak a
temporary injunction barring the government from accessing emails of
individuals in its coverage without a warrant or notification to that
individual.

The Stored Communications Act (18 U.S.C. §§ 2701 - 2712) permits the
government to access emails stored at an ISP under certain conditions
with the issuance of a subpoena. (18 U.S.C. § 2703(b)). The act also
permits the government to delay notification of this access under
certain conditions, such as if it would lead to flight from prosecution,
or destruction of evidence. (18 U.S.C. § 2705). The government argued
that this provision is constitutional because one does not have an
expectation of privacy in what one has turned over to a third party, in
this case the ISP.  The court ruled otherwise, likening emails to
telephone calls.  One does not expect privacy in the numbers they dial,
but does expect that the content of their calls is private, even if the
telephone company could be listening.

Further, the court found that Warshak's suit is not limited to his
emails. The court decided that Warshak's request is properly a "facial
challenge" that challenges the text of a law on its face, under all
circumstances. Thus the effect of the ruling is to prevent the
government from access to the emails of all individuals in southern
Ohio, the site of the original suit, absent a warrant or a subpoena with
notification to the subject.

Sixth Circuit Decision in Warshak v. United States (pdf):

       http://www.ca6.uscourts.gov/opinions.pdf/07a0225p-06.pdf

EPIC's page on Wiretapping:

       http://www.epic.org/privacy/wiretap/

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-- 
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