Internet Litigation Update: Stored E-Mail Messages Entitled to Fourth Amendment Protection


The Sixth Circuit recently became the first appellate court to extend Fourth Amendment protection to stored e-mail messages. In United States v. Warshak, No. 08-3997, ___ F.3d __, 2010 WL 5071766 (6th Cir. Dec. 14, 2010), it held that when the government compels an Internet service provider (ISP) to disclose a user’s stored e-mail messages, the user’s reasonable expectation of privacy might be violated.

The facts underlying the decision were both simple and stark. Without either obtaining a warrant or giving notice to Steven Warshak, who was later convicted of charges related to his fraudulent business practices, the government seized 27,000 of his private e-mail messages. Some of them were highly damning and provided key evidence at his trial.

The Sixth Circuit found that an ISP “is the functional equivalent of a post office or a telephone company” and concluded that it defied common sense to deny e-mail messages lesser Fourth Amendment protection than letters and telephone calls enjoy. Without examining whether people in fact assume that their e-mail messages will remain private, the court held that the Fourth Amendment requires that e-mail messages be given “strong protection” lest the Fourth Amendment become an “ineffective guardian of private communication.”

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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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