Federal Appeals Court Holds Email Content Is Constitutionally Protected

LAW: CASE: DECISIONS:
Policy Post 13.10: Federal Appeals Court Holds Email Content Is
Constitutionally Protected

Subject: Policy Post 13.10: Federal Appeals Court Holds Email Content Is
Constitutionally Protected

A Briefing On Public Policy Issues Affecting Civil Liberties Online
from The Center For Democracy and Technology

(1) Federal Appeals Court Holds Email Content Is Constitutionally
Protected

(2) IP Addresses, E-mail "To" and "From" Data Not Protected
- Court Ruling

_______________________________________________________

In the past month, two federal appeals courts have grappled with the
Constitutional status of Internet communications. Their rulings have
substantial implications for privacy, and raise anew concerns that
existing law may not be sufficient to protect Americans' privacy in
the digital age.

In an important case, the federal appeals court for
the Sixth Circuit (covering Kentucky, Michigan, Ohio, and Tennessee)
ruled on June 18 that email users generally enjoy a
constitutionally-protected right of privacy in the content of their
email as it sits in storage with a service provider. The court also
declared unconstitutional a provision of the Electronic
Communications Privacy Act that allows government investigators to
use a subpoena or court order issued on less than probable cause to
obtain older email without notice to the person whose email is being
disclosed.

The rule established by the court is simple: in order to obtain email
from a service provider, either a) the government must obtain a
search warrant issued under the relatively high standard of probable
cause set forth in the Fourth Amendment, or b) if the government
wants to use a mere subpoena or a court order issued on less than
probable cause, it must provide notice to the person whose
communications are being sought, giving that person an opportunity to
object.

For Internet users, the ruling is a small but significant victory for
privacy. The Justice Department has argued that email, while
protected in transit, loses the full protection of the Constitution
after it reaches a user's "inbox" on the computer of a service
provider. The 1986 Electronic Communications Privacy Act set up a
complicated set of rules according different protection to email
depending on how and for how long it is stored. The Sixth Circuit
cuts through all of that, bringing email under a single,
Constitutionally based rule.

The ruling will likely channel more law enforcement efforts to obtain
the contents of older, stored email into the warrant arena -- with
its higher probable cause standard -- especially when government
investigators do not want to give notice to the target of their
investigation. As a result, sensitive email content information will
likely be accessed later in an investigation, when there is
sufficiently strong suspicion to establish probable cause.
Therefore, the decision may make it less likely that law enforcement
will access the email of innocent persons.

> From a corporate perspective, the ruling brings some needed

simplicity to the rules governing disclosure of stored email. The
ruling should be welcome to email providers for another reason: as
Internet users remain acutely sensitive to privacy, this case gives
them some measure of confidence, marking out one area where online
communications enjoy constitutional protection. While the U.S.
Justice Department is likely to seek to overturn the decision, the
case actually should not have a major impact on law enforcement
practices, since under ECPA law enforcement agencies already have to
obtain a warrant to get current email.

The premise of the court's constitutional ruling -- that email users
reasonably expect that an email is a private communication between
sender and recipient -- is obviously true, as reflected in the
widespread reliance on email for sensitive communications in
commerce, government and personal relations. Perhaps the only thing
remarkable about the case is that the regular federal courts had
never addressed the constitutional issues it raised.

The Justice Department is likely to seek to have the ruling
overturned by a larger panel of the Sixth Circuit and, in any case,
the Department will not consider itself bound by the ruling outside
the Sixth Circuit.