Email Privacy Protected By Fourth Amendment, Says US Sixth Circuit Court Of Appeals

The EFF (Electronic Frontier Foundation) claimed a victory as the US Sixth Circuit Court of Appeals ruled on the so-called Warshak case (United States of America versus Steven Warshak, Harriet Warshak and TCI Media, Inc.) finding in essence that the government must have a search warrant before it can seize and search email messages stored by email service providers.

The court ruled that, in the absence of a search warrant, email users have a reasonable expectation of privacy of their email messages (similar to that afforded to postal email and telephone calls) when it comes to government/law enforcement scrutiny. The EFF’s announcement excerpted this part of the court’s opinion:

“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…. [T]he police may not storm the post office and intercept a letter, and they are likewise forbidden from using the phone system to make a clandestine recording of a telephone call–unless they get a warrant, that is. It only stands to reason that, if government agents compel an ISP to surrender the contents of a subscriber’s emails, those agents have thereby conducted a Fourth Amendment search, which necessitates compliance with the warrant requirement…”

Somewhat ironically, this ruling stems from the criminal case of Steven Warshak, founder of a company best-known for its Enzyte “male enhancement” pills, widely advertised using the “Smilin’ Bob” character pictured here.

The Six Circuit Court’s ruling doesn’t vacate Warshak’s conviction on 93 counts of fraud, conspiracy and money laundering, but other reports say that the finding may reduce the 25-year prison sentence he previously received.

The full text of the court’s ruling contains a rather extensive summary of the fraudulent activities in which Warshak was engaged including false advertising, phony testimonials and scientific studies, etc.

Note that the court’s ruling applies to government search and seizure of email. It doesn’t change other expectations of privacy around email, such as the privacy of one’s email sent from or through an employer’s computer systems. Neither does the ruling impact the efficacy of “male enhancement” products. Caveat emptor.

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Keith Crosley directs corporate communications for Proofpoint. Keith’s job entails the promotion of Proofpoint e-mail security solutions to press, analysts and the enterprise e-mail security market at large. His blog covers a wide variety of e-mail security topics including anti-spam, phishing, identity theft, data breaches and the policy, culture and technology issues that surround e-mail. Previous positions have included director, corporate communications at Elance, senior director, worldwide public relations at BroadVision and director of marketing at WiredPlanet.com. As a key spokesperson for Proofpoint and e-mail security evangelist/researcher, he takes part in television and radio appearances. Avocationally and semi-professionally, he is a filmmaker, musician and all-round multimedia enthusiast.