A minor victory for privacy in an era where the concept prohibition of warrantless searches has been pretty much ignored.
The Sixth Circuit court rules that emails held by an ISP require 4th amendment protection, and a warrant before they are handed over to law enforcement.
Breaking News on EFF Victory: Appeals Court Holds that Email Privacy Protected by Fourth Amendment
In a landmark decision issued today in the criminal appeal of U.S. v. Warshak, the Sixth Circuit Court of Appeals has ruled that the government must have a search warrant before it can secretly seize and search emails stored by email service providers. Closely tracking arguments made by EFF in its amicus brief, the court found that email users have the same reasonable expectation of privacy in their stored email as they do in their phone calls and postal mail.
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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. We hope that this ruling will spur Congress to update that law as EFF and its partners in the Digital Due Process coalition have urged, so that when the government secretly demands someone's email without probable cause, the email provider can confidently say: "Come back with a warrant."
The article is posted on the Electronic Frontier Foundation, which, if you are not familiar with, deserves your attention.
The EFF has been a leader in trying to address privacy issues and the threats to them in this electronic age. They have attempted to form coalitions with industry and privacy groups to work towards this goal.
EFF Joins With Internet Companies and Advocacy Groups to Reform Privacy Law
Coalition Urges Updates to Electronic Privacy Statute to Reflect Web 2.0 World
San Francisco - As part of a broad coalition of privacy groups, think tanks, technology companies, and academics, the Electronic Frontier Foundation (EFF) today issued recommendations for strengthening the federal privacy law that regulates government access to private phone and Internet communications and records, including cell phone location data.
The "Digital Due Process" coalition includes major Internet and telecommunications companies like Google, Microsoft, and AT&T as well as advocacy groups such as the American Civil Liberties Union (ACLU) and the Center for Democracy & Technology (CDT). The coalition has joined together to preserve traditional privacy rights and clarify legal protections in the face of a rapidly changing technological landscape.
"The federal law protecting Internet and telephone users' privacy was written nearly 25 years ago, which is eons ago in 'Internet time,'" said EFF Senior Staff Attorney Kevin Bankston. "When it comes to privacy, EFF has had its disagreements with fellow Digital Due Process members such as Google and AT&T. But this diverse coalition of privacy advocates and Internet companies agree on at least one thing: the current electronic privacy laws are woefully outdated and must be updated to provide clear privacy protections that reflect the always-on, location-enabled, Web 2.0 world of the 21st century."
As far back as several years ago, the use of warrantless searches of electronic devices and email was already exploding, as reported by the Wall Street Journal back in 2008.
When the Police Go Through Your Email: Quirk of Search Law Sets Off Alarm Bells
When you look at your BlackBerry, you see a gadget full of important email, contacts and other files. Increasingly, authorities see admissible evidence.
In a small but growing number of cases, customs officials and police officers have been carrying out warrantless searches of the contents of laptops, mobile phones and other wireless devices. This spring, the 9th Circuit U.S. Court of Appeals in California ruled that "reasonable suspicion is not needed for customs officials to search a laptop or other personal electronic storage devices at the border," including international airports.
And in a handful of instances, courts have supported local police interpretations of legal searches to include browsing through phone call lists and text messages on cellphones when they arrest suspects.
Adam Gershowitz, a professor at the South Texas College of Law, argues law enforcement officials are flirting with a dangerous invasion of privacy under the "search incident to arrest" doctrine, which allows officers to search "containers" on the person of or within the reach of suspects without probable cause.
The ACLU has sued over the issue of warrantless searches of laptops at our borders.
ACLU sues over warrantless border laptop searches
An Obama administration policy allowing US border officials to seize and search laptops, smart phones and other electronic devices for any reason was challenged as unconstitutional in federal court Tuesday.
Citing the government's own figures, the American Civil Liberties Union and the National Association of Criminal Defense Lawyers claim about 6,500 persons had their electronic devices searched along the U.S. border since October 2008. In one instance, according to the lawsuit filed in New York, a computer laptop was seized from a New York man at the Canadian border and not returned for 11 days. The lawsuit seeks no monetary damages, but asks the court to order an end to the searches.
"All we want is that the government has to have some shred of evidence they can point to that may turn up some evidence of wrongdoing," says ACLU attorney Catherine Crump.
The so-called "border exception" to the Fourth Amendment's probable-cause standard sometimes requires the lower standard of "reasonable suspicion" to search a traveler's person or physical property, says Crump. But when it comes to electronic devices, the government's "policy allows a purely suspicionless search of laptops, cell phones and other electronic devices," she says.
The lawsuit comes as laptops, and now smart phones, (.pdf) have become virtual extensions of ourselves, housing everything from e-mail to instant-message chats to our papers and effects.
The government maintains it needs the carte blanche authority to search electronics at the border to keep the United States safe. That's what it told the San Francisco-based 9th US Circuit Court of Appeals, which approved the searches in 2008. Tuesday's lawsuit is in the jurisdiction of the New York-based 2nd US Circuit Court of Appeals, which is not obliged to follow precedent in other circuits.
At the close of the Constitutional Convention, Benjamin Franklin was reported to have been asked what type of government the Constitution was bringing into existence. Franklin replied, "A republic, if you can keep it."
The "if you can keep it" part seems today particularly relevant.