ISPs Take Note: Court Rules E-mails Have Full 4th Amendment Protection


The U.S. Court of Appeals for the 6th Circuit has just issued a trail-blazing opinion that is good news for anyone who has ever sent an e-mail – and that needs to be carefully read and adhered to by all Internet service providers (ISPs).

We noted six months ago that ISPs have been all too ready to satisfy prosecutors’ requests for access to customer e-mails stored on their servers. We said that prosecutors are routinely using subpoenas, rather than search warrants, to obtain e-mails from ISPs, and that subpoenas can be issued under a much lower standard than the probable cause standard used for search warrants. They require, rather than probable cause, only a reasonable possibility that the materials or testimony sought will produce information relevant to the general subject of the investigation.

The ISPs’ attitude, we said, meant that anyone who uses the Internet risks intrusion from unlawful government surveillance practices.

Now, in a thoughtful and unanimous opinion in United States v. Warshak, the 6th Circuit has written a ringing affirmation of the principle that e-mail must be treated like a letter or a phone call under the Fourth Amendment. Prosecutors can get hold of a suspect’s or witness’s e-mail from an ISP, but only if they first go before a judge and obtain a search warrant.

In Warshak, the U.S. attorney obtained 27,000 private e-mails sent to and from the defendant, Steven Warshak, after a warrantless search directed at Warshak’s ISP. Warshak was convicted of a great many fraud and money-laundering-related counts and challenged his conviction, seeking a ruling that the e-mails should have been excluded from evidence, among other arguments.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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