p2pnet news view | P2P | Politics:- “Tomorrow the Sixth Circuit will be holding argument in Warshak v. United States, a rather odd case involving e-mail privacy,” said The Volokh Conspiracy a couple of years ago, going on »»»

I’m pretty sure the court won’t get to the merits, but it’s a notable case nonetheless.

Warshak, a suspect in a massive fraud case, sought an injunction against the government obtaining his e-mail from his ISP pursuant to the Stored Communications Act. Warshal reasoned that the Stored Communications Act lets the government obtain e-mail in some cases with less process than a full search warrant, and that if the government were to obtain his e-mail in that way that it would end up violating his Fourth Amendment rights. The district court judge in the case ended up crafting a rather strange injunction to address possible Fourth Amendment shortcomings in the statute: the judge ruled that the United States could not obtain e-mail with less process than a warrant in any case anywhere in the Southern District of Ohio unless it gave that person prior notice and an opportunity to be heard.

The government’s brief on appeal before the Sixth Circuit is here; Warshak’s brief is here.

I ended up deciding not to file an amicus brief in the case because it seems very unlikely that the court will reach the merits.

Now The American Civil Liberties Union, Center for Democracy and Technology and Electronic Frontier Foundation say they’ve filed an amicus brief in Warshak v United States, urging the 6th US Circuit Court of Appeals to, “rule the government’s seizure of email without a warrant violated the Fourth Amendment and federal privacy statutes, as well as the Justice Department’s own surveillance manual”.

The Department of Justice, “illegally ordered defendant Stephen Warshak’s email provider to prospectively ‘preserve’ copies of his future emails, which the government later obtained using a subpoena and a non-probable cause court order,” says the EFF.

“The government accomplished this ‘back door wiretap’ by misusing the Stored Communications Act (SCA), which is only supposed to be used for obtaining emails already in storage with a provider,” it says, arguing the seizure violated federal privacy laws and Warshak’s Fourth Amendment expectation of privacy in his email.

“As a result, the illegally seized emails should have been suppressed by the district court where Warshak was tried,” it says, going on:

“All told, the government acquired over 27,000 emails spanning over six months from Warshak’s email provider, all without probable cause.”

The foundation says it filed a similar amicus brief with the 6th Circuit in 2006 in a civil suit brought by Warshak against the government for its warrantless seizure of his emails.

“There, the 6th Circuit agreed with EFF that email users have a Fourth Amendment-protected expectation of privacy in the email they store with their email providers, though that decision was later vacated on procedural grounds,” it adds.

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The Volokh Conspiracy – Warshak v. United States, April 17, 2007
EFF – EFF Challenges Government’s ‘Back Door Wiretap’, June 11, 2009