Court Grants E-Mail Users New Privacy Protections

The Constitution Protects E-Mail Privacy, Court Says

By SCOTT MICHELS

June 20, 2007 —

A federal court decision this week could give e-mail users broad new privacy protections against the government but may hamper criminal investigations, legal experts told ABC News.

Monday, the Sixth Circuit Court of Appeals in Ohio held that Internet users had a reasonable expectation of privacy in the content of personal e-mails being stored by Internet service providers such as Yahoo! and Google.

It was the first federal appellate court decision to recognize a wide constitutional right to privacy in personal e-mails. Though the ruling only applies in the Sixth Circuit, if followed by other federal courts, the case could shift the debate in the unsettled area of Internet privacy law, lawyers said.

The case is "a blockbuster decision," said Orin Kerr, a former trial lawyer with the Department of Justice's computer crimes division who now teaches at George Washington University School of Law. "It's a ringing endorsement of strong privacy protection in e-mail."

The three-person panel of the Sixth Circuit upheld a lower court order that found federal investigators in an Ohio fraud investigation had overstepped their constitutional power by obtaining e-mails from an Internet service provider without a warrant.

"It goes without saying that like the telephone earlier in our history, e-mail is an ever-increasing mode of private communication, and protecting shared communications through this medium is as important to Fourth Amendment principles today as protecting telephone conversations has been in past," the court said.

'Back to the Drawing Board'

Federal wiretapping laws restrict the government's ability to read e-mails as they are being sent. But, the 1986 federal Stored Communications Act allowed investigators to obtain e-mails that have been stored for more than 180 days by a service provider if the e-mails are relevant to an ongoing criminal investigation ??? a standard, criminal lawyers said, that makes it easy for the government to read personal e-mails.

Investigators obtain the e-mails directly from the service providers, which store the e-mails, rather than the e-mail user.

But, the Sixth Circuit said Monday that the Constitution granted Internet users greater privacy protections ??? requiring investigators to either get a warrant, give the e-mail user the chance to contest the search or show that the Internet service provider agreement gave e-mail users no expectation of privacy.

"If this decision is right, Congress has to go back to the drawing board," Kerr said, adding that the decision may be overturned on appeal.

Dean Boyd, a Justice Department spokesman, said prosecutors were still considering whether to appeal to the full 11-member panel of the Sixth Circuit.

Fraud Investigation

Monday's ruling arose out of the prosecution of Steven Warshak, who was indicted last year on 107 counts of wire fraud, money laundering and other crimes for allegedly defrauding customers and banks out of more than $100 million through the sale of herbal supplements. He faces up to 30 years in prison.

Court papers show that federal investigators obtained some of Warshak's old e-mails that were being held by NuVox Communications and Yahoo!. The government did not notify Warshak that it was reading his e-mails until more than a year later, court records show.

Boyd said Monday's ruling would probably not affect Warshak's case, but declined to say how it might affect other criminal investigations.

E-Mail Privacy a 'Dangerously Open' Question

But lawyers told ABC News that the ruling could have a wide-ranging impact and that it raised a constitutional issue that could eventually find its way to the Supreme Court.

"Whether or not you have a constitutional right of privacy in your stored e-mail has been a dangerously open question over the past 20 years, particularly in recent years when so many of us store all of our personal e-mail with our Web-mail providers," said Kevin Bankston, a staff lawyer with the Electronic Frontier Foundation, which filed a friend of the court brief in the Warshak case.

The Constitution generally grants little protection to personal information that is being held by a third party, such as banks. The conventional wisdom, said Paul Ohm, a University of Colorado Law School professor and former computer crimes prosecutor, was that the same reasoning applied to e-mails.

"E-mail has always been treated as a second-class citizen," he said. "Police were free to engage in more speculative investigations of people's e-mail messages. But [the Sixth Circuit ruling] means that e-mail has been elevated as something that is much more significant and important."

Ohm said he expected lawyers to start raising similar challenges in cases around the country

At the same time, the ruling could make it more difficult for government investigators to gather information on suspected criminals or terrorists, said Kerr.

Investigators would have to gather more incriminating facts about a suspect before they could read personal e-mails.

Kerr also questioned whether the case would be overturned on appeal.

"They were effectively drafting a statute to protect e-mail," he said. "This basically rewrites the law that applies to e-mails."