Appeals Court Ruling Applies Fourth Amendment Protection to Email

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(WEB HOST INDUSTRY REVIEW) — In what could be a landmark decision affecting the way web hosts interact with customer data and with law enforcement, a US federal appeals court ruled Tuesday that police must obtain a warrant before accessing email data stored by Internet service providers.

According to a variety of reports published Tuesday, a three-judge panel of the Sixth Circuit Court of Appeals ruled – in an appeal dealing with the conviction of three defendants in “a scheme to defraud [Berkeley Premium Nutraceuticals’] customers” – that government agents had violated the Fourth Amendment (the one that protects against unreasonable search and seizure) in demanding that Internet service provider NuVox turn over the emails of one defendant without first obtaining a warrant.

The full 98-page is available online (in PDF format). Incidentally, the ruling is in the fairly interesting case of Steven Warshak, operator of a questionably-run-and-billed distributor of natural supplements, specifically erectile enhancement products. At issue in the appeal was the fact that police accessed thousands of Warhsak’s emails through

The most interesting content seems to begin on page 17 and run through page 29, where the ruling discusses the fundamental similarities between email and other forms of communication, including postal mail and telephone communications.

“Given the fundamental similarities between email and traditional forms of communication,” says the ruling, “it would defy common sense to afford emails lesser Fourth Amendment protection.”

In arguing that that Fourth Amendment protection should be applied to email, the ruling says:

“If we accept that an email is analogous to a letter or a phone call, it is manifest that agents of the government cannot compel a commercial ISP to turn over the contents of an email without triggering the Fourth Amendment. An ISP is the intermediary that makes email communication possible. Emails must pass through an ISP’s servers to reach their intended recipient. Thus, the ISP is the functional equivalent of a post office or a telephone company. As we have discussed above, the 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.”

The court also said that part of the Stored Communications Act was unconstitutional, in that it enables the government to compel ISPs to turn over their customers’ email without first obtaining a warrant.

Reactions to the ruling from civil liberties advocates have been understandably positive.

“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,” said the Electronic Frontier Foundation, in a statement. “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.’”

This is obviously where things would change for hosting providers, with regard to police requests for access to customer data.

The ruling returned the case to the lower court for a new sentence, but upheld the conviction on the grounds that police acted in good faith on their interpretation of the surveillance law. Warshak’s 25-year sentence was discarded on grounds not related to the seizure of his email.

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