Does the Fourth Amendment Apply to Emails?
In U.S. v. Warshak, the United States Court of Appeals for the Sixth Circuit held that email correspondence enjoys substantially the same expectations of privacy and therefore of Fourth Amendment protections as do snail mail and telephone conversations. Warshak was a criminal case involving many millions of dollars and substantial fraud against numerous customers. Electronic communications, including some twenty-seven thousand emails, were important to the prosecution’s case.
The court held that:
The government may not compel a commercial ISP [internet service provider] to turn over the contents of a subscriber’s emails without first obtaining a warrant based on probable cause. Therefore, because they did not obtain a warrant, the government agents violated the Fourth Amendment when they obtained the contents of Warshak’s emails. Moreover, to the extent that the SCA [Stored Communications Act] purports to permit the government to obtain such emails warrantlessly, the SCA is unconstitutional. (emphasis added)
Two essential tests were employed in determining Fourth Amendment applicability. First, whether the criminal defendant had a reasonable expectation of privacy, and second, whether society in general recognizes one. The court found:
Given the often sensitive and sometimes damning substance of his emails, we think it highly unlikely that Warshak expected them to be made public, for people seldom unfurl their dirty laundry in plain view.
As to the second test, the court found that:
This question is one of grave import and enduring consequence, given the prominent role that email has assumed in modern communication. Cf. Katz, 389 U.S. at 352 (suggesting that the Constitution must be read to account for “the vital role that the public telephone has come to play in private communication”). Since the advent of email, the telephone call and the letter have waned in importance, and an explosion of Internet-based communication has taken place. People are now able to send sensitive and intimate information, instantaneously, to friends, family, and colleagues half a world away. Lovers exchange sweet nothings, and businessmen swap ambitious plans, all with the click of a mouse button. Commerce has also taken hold in email. Online purchases are often documented in email accounts, and email is frequently used to remind patients and clients of imminent appointments. In short, “account” is an apt word for the conglomeration of stored messages that comprises an email account, as it provides an account of its owner’s life. By obtaining access to someone’s email, government agents gain the ability to peer deeply into his activities.
The court drew a further analogy to telephone conversations, noting that they are “fully protected by the Fourth and Fourteenth Amendments” even though telephone companies have the capability to monitor and record calls. The court drew a similar analogy to snail mail, stating:
While a letter is in the mail, the police may not intercept it and examine its contents unless they first obtain a warrant based on probable cause. This is true despite the fact that sealed letters are handed over to perhaps dozens of mail carriers, any one of whom could tear open the thin paper envelopes that separate the private words from the world outside. Put another way, trusting a letter to an intermediary does not necessarily defeat a reasonable expectation that the letter will remain private.
Given the fundamental similarities between email and traditional forms of communication, it would defy common sense to afford emails lesser Fourth Amendment protection. … Over the last decade, email has become “so pervasive that some persons may consider [it] to be [an] essential means or necessary instrument for self-expression, even self-identification.” 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. (Internal citations omitted)
It is noted here that:
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.
However, it wasn’t quite that simple in the Warshak case nor may it be in subsequent cases in different circuits.
“the Sixth Circuit held that email correspondence enjoys substantially the same expectations of privacy and therefore of Fourth Amendment protections as do snail mail and telephone conversations.”
I don’t think I’ve sent a single e-mail – ever – I’ve thought the big G do not read. The same applies to Internet surfing.
What is left of the Fourth Amendment, or the First, or the Second, or the Tenth? Or The Constitution?
Maybe I’m just being depressed today?
I’m not paranoid enough to think that they’re actually interested in anything I write, but certainly they have that ability, and always have. And so does Boris in Novosibirsk. But it’s a little psycho to think anyone is actually physically reading your stuff unless there’s a specific reason. Content mining, however, is quite possible and even likely.
I can’t believe the Fourth Amendment is even being discussed in regard to e-mails, when private citizens are subject to body scans and pat downs in order to get on a plane!
The courts deal with the cases presented to them; they have no mandate to go looking for things to do. I see this case as one more judicial defense of the Constitution and every time that happens I think it is good. The case has received very little media attention, probably because it complicated and the subject matter is far less in the public eye than such things as ObamaCare. Every little step is important.
I’m having a hard time seeing how this is going to square with the recent decision (sorry, don’t have the case at my fingertips) that the cops can attach GPS devices to your car without your knowledge in your private driveway. Something’s got to get resolved here. To me, the expectation that my car in my driveway isn’t going to be bugged without my notice is a much more reasonable expectation than that my unencrypted emails won’t be read.
It’s a different situation entirely. Mail has always been private. If the government has the right to read your emails, why not your snail mail? While I don’t agree with their methods of checking for terrorist fliers (stupid really) no one flying has to do so. It’s a choice you make and you know you don’t have the privacy when you decide to fly.
Chris Baker:
Using your logic one could argue that a person makes a choice to use email… “It’s a choice you make and you know you don’t have the privacy when you decide to” email.
Doesn’t work anymore because I’ve changed one word?
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation,… and particularly describing the place to be searched, and the persons or things to be seized.”
There is no exception written simply because a person chooses to engage in .
Very good writeup and done in a way that is understandable for persons who don’t have the in depth knowledge of the law that the author has.
I do have to laugh just a bit, however, as I recall that for years, anti-abortion and anti-birth control activists have claimed there is no right to privacy contained within the Constitution.
If our “junk” can be forcibly, legally groped at random when we need to enter a civic building or airport, then the Fourth Amendment is dead along with the rest of Consitution (such as the 10th). So, yes: All of your mail can be read, all of your conversations can be heard, and you can be cavity searched for no reason at all. Why? Because people put up with it, that’s why. Now bend over.
The Constitution is not dead, just on life support. Fortunately, some federal judges still think it’s alive and are doing what little they can to apply it; however, until a case comes before a court it can do nothing. Until then, it’s up to the Congress in enacting laws and to the President in signing them. With a new Congress to be seated early next month there is at least a glimmer of hope for the future.
Unfortunately, the Constitution has been whittled away for many years and the Supreme Court precedents doing so are binding on lower courts.
I was pleased with the Warshak decision and with the recent Eastern District of Virginia federal court decision on ObamaCare holding the mandatory health insurance provision beyond the authority of Congress under the Commerce Clause.
Change for the better, should it come, will be slow but that’s better than having it be for the worse.
Further to my most recent comment, it seems that under the new rules proposed by the incoming Republican majority the U.S. Constitution will be read aloud at the opening of the new Congress on January 6th. It is, of course, a purely symbolic gesture but sometimes symbols are important. I wonder how many of the Honorable Members will have heard or read it for the first time.
I don’t completely trust his word, but in any event it seems an excellent way to open the new Congress.