April 19, 2014

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Court Rules Email Protected by Fourth Amendment

Today, the United States Court of Appeals for the Sixth Circuit ruled that the contents of the messages in an email inbox hosted on a provider’s servers are protected by the Fourth Amendment, even though the messages are accessible to an email provider. As the court puts it, “[t]he government may not compel a commercial ISP to turn over the contents of a subscriber’s emails without first obtaining a warrant based on probable cause.”

This is a very big deal; it marks the first time a federal court of appeals has extended the Fourth Amendment to email with such care and detail. Orin Kerr calls the opinion, at least on his initial read, “quite persuasive” and “likely . . . influential,” and I agree, but I’d go further: this is the opinion privacy activists and many legal scholars, myself included, have been waiting and calling for, for more than a decade. It may someday be seen as a watershed moment in the extension of our Constitutional rights to the Internet.

And it may have a more immediate impact on Capitol Hill, because in its ruling the Sixth Circuit also declares part of the Stored Communications Act (SCA) of the Electronic Communications Privacy Act unconstitutional. 18 U.S.C. 2703(b) allows the government to obtain email messages with less than a search warrant. This section has been targeted for amendment by the Digital Due Process coalition of companies, privacy groups, and academics (I have signed on) for precisely the reason now attacked by this opinion, because it allows warrantless government access to communications stored online. I am sure some congressional staffers are paying close attention to this opinion, and I hope it helps clear the way for an amendment to the SCA, to fix a now-declared unconstitutional law, if not during the lame duck session, then early in the next Congressional term.

Update: Other reactions from Dissent and the EFF.

Comments

  1. paul says:

    Congratulations to the many law professors cited in the opinion: Orin Kerr, Susan Freiwald, Patricia Bellia, and Deirdre Mulligan. Congratulations also to Kevin Bankston and EFF for also being cited.

  2. Thomas says:

    Is it likely to be appealed? My understanding is that the govt. got the conviction it wanted, does that keep them from appealing this part of the verdict?

    • paul says:

      The government doesn’t have much incentive to appeal because, as you note, they got the result they wanted even if they didn’t get the reasoning they wanted. Although the court held that the government violated the defendant’s Fourth Amendment rights, it decided not to suppress the evidence because of the good-faith exception to the exclusionary rule. I am willing to bet that some attorneys in DOJ (where I once worked) are clamoring for an appeal to get rid of the “bad” reasoning, but I am also sure there are others recommending that they wait to fight this another day, in another circuit. I would guess that the latter group will win the debate and so the government won’t appeal this any further.

      The defendant can (and if I had to guess, probably will) still appeal, first to the full Sixth Circuit Court en banc and then to the Supreme Court. Both of these court panels take cases only at their discretion, and I will be surprised if either one takes the case.

  3. Clive Robinson says:

    Unfortunatly for many this ruling will be of little consiquence.

    The majority of EMail inboxes of web based systems are often not in the same jurisdiction as the person. And thus all sorts of interesting quirks come up.

    Likewise back up systems half way around the world are likewise at best protected by the local legislation that is effectivly non existant.

    In the UK we have already seen evidence of communications presented in court in trials involving UK residents where it was accepted as evidence against the accused (even though it would be illegal to have obtained in the UK) simply because the US has monitored it as a communications by a foreign national and subsiquently passed it to UK authorities.

    We then had the spectacle of a UK Government “intelligence expert” explaining to the court that the wording in the messages was stylized and thus a code. And then go on to give an ill fitting translation to what he thought the messages he claimed to be in code actually ment.

    And for these reasons I would still recomend people pull their email from any server as a matter of course and send mail encrypted as much as possible (and encorage others to do so).

    This is not to in anyway diminish the significance of this ruling but it is but one step in one country that only applies to it’s citizens Email as long as it is from another citizen and has never gone outside of the country on an international journy where it instantly becomes fair game.

  4. Anonymous says:

    I’m shocked. Something in the US Constitution still defends some small degree of privacy for somebody, sometimes. Wonders will never cease. Is it all that difficult to get a warrant though? You have to puzzle a bit over why they go to such effort to avoid the mundane step of documenting who they are investigating, and why, with the very minimal justification demanded by courts.

    “And for these reasons I would still recommend people pull their email from any server as a matter of course and send mail encrypted as much as possible (and encorage others to do so).”

    Don’t worry, the server generally has backups, and the data on the wire gets sniffed and stored too. Encryption is still useful, but only to a limited degree (they can always beat a confession out of you). Let us just fall back to good old fashioned sarcasm, and aren’t there a lot of honorable men in Congress these days?