South-Western Legal Studies in Business

E-mails Protected by Fourth Amendment Right of Privacy
Description Appeals court upheld an injunction against government search of all e-mails of a person suspected of committing certain crimes. As e-mails are protected by the Fourth Amendment, investigators must obtain a warrant to seize e-mails expected to be linked to the alleged criminal activity.
Topic Cyberlaw
Key Words Fourth Amendment; Criminal Investigation; Warrants; E-mail; Privacy
C A S E   S U M M A R Y
Facts The government was investigating Warshak for evidence of money laundering and mail and wire fraud. Investigators got a court order requiring Warshak’s internet service provider (ISP) to turn over to government agents all of Warshak’s account information, including details of e-mails he received from outsiders about their orders and bank account information. The ISP could not tell Warshak about this. A year later, when the government let Warshak know his e-mails had been read, he moved to have the order to the ISP quashed and an order to prohibit access to his e-mails without a warrant. He contended the original order violated his Fourth Amendment rights and the Stored Communications Act (SCA). The district court issued an injunction against the government. It appealed.

Affirmed. Individuals have a reasonable expectation of privacy in e-mails that are stored with, or sent or received through, commercial ISPs. This means the Fourth Amendment protection applies to e-mails. The Stored Communications Act also requires warrants or notices be issued for government agents to have access to e-mails. The fact that most ISPs screen e-mails for viruses, spam and child pornography does not mean that users’ expectation of privacy in content of e-mails is waived. When a warrant is issued to allow e-mails to be seized, the warrant must specify the scope of communications to be searched; there must be a specific target tied to the reasonable belief of a crime.

Citation Warshak v. U.S., 490 F.3d 455 (6th Cir., 2007)

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