Appeals court delivers significant email privacy ruling

Contributed by Charles Nguyen (Mercredi, 22 décembre 2010) | Category : Email messaging trends

The Sixth Circuit Court of Appeals recently ruled email is to be afforded the same privacy protections as other forms of communication under the Fourth Amendment, which prohibits unreasonable search and seizure. Police and law enforcement must now obtain a warrant to obtain email records.

Until now, there had never been a clearly defined mandate for obtaining emails since the Stored Communications Act was implemented in 1986, when email was more of a luxury than the common communication platform it is today.

Under the act, law enforcement has been going off a general rule that emails up to 180 days old could be obtained without a warrant. Messages older than that could be accessed through an administrative subpoena, which lacks the probable cause requirement of a warrant.

That changed with this most recent ruling, which strikes down this section of the Stored Communications Act.

According to the court "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. … By obtaining access to someone's email, government agents gain the ability to peer deeply into his activities."

Essentially, the ruling brings the Stored Communications Act into the Technology Age by recognizing that email accounts, whether corporate or third-party, such as Gmail, Yahoo or Hotmail, are the modern-day post offices. Users' whole lives may be dissected by perusing email, and, for this reason, the court ruled privacy must be protected within the medium.

More than anyone, companies and organizations that rely on email as their primary mode of communication should be happy about this decision. It ensures that business-critical and confidential information is protected within email archives.

Since the ruling did not specifically pertain to an eDiscovery case, it is unclear whether or not these privacy protections will extend to such litigation. Though this may be an issue that is addressed in future cases.

Still, experts are calling the ruling a landmark decision, and one many have argued over for the past decade or so.

“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," University of Colorado law professor Paul Ohm wrote on the blog Freedom to Tinker, which is hosted by Princeton University's Center for Information Technology Policy.

These law professors and privacy activists have an unlikely source to thank for such a major ruling. The larger case the appeals court was ruling on was that of Steven Warshak, owner and mastermind behind Berkeley Premium Nutraceuticals. The company is better known as the makers of Enzyte, a male enhancement supplement.

Warshak had been convicted of fraud for misleading customers about the effectiveness of Enzyte and automatically signing them up and charging them for a three-month supply of the pill when just a sample was requested. He was sentenced to 25 years in prison.

But Warshak appealed his case, which dates back to 2006, arguing his privacy rights were violated when law enforcement accessed his email account. Federal agents obtained 27,000 of Warshak's emails by issuing a subpoena to his internet service providers, including NuVox Communications, which held Berkeley Premium Nutraceuticals' company emails.

The appeals court upheld Warshak's conviction and sent the case back to a lower court for a review of his prison sentence. But the email privacy ruling carries much more significance.

"Given the fundamental similarities between email and traditional forms of communication, it would defy common sense to afford emails lesser Fourth Amendment protection," judge Danny Boggs wrote in the court's 3-0 decision.