The very first email message was sent in 1971 by a computer engineer named Ray Tomlinson.
It was just a simple test message sent between two computers sitting next to each other on a desk. At the time, Tomlinson had no idea of the ultimate ramifications of this invention. Today, email has revolutionized the way we communicate.
With an estimated 250 billion messages sent every day, email is used by individuals and corporations alike to both conduct business and share information across the internet. From bank statements to greeting cards, information that was once sent via the U.S. Postal service is now sent by email.
Although not completely replacing either the telephone or the U.S Postal service, email has become the de facto standard for daily communication for millions of Americans. Until recently, email enjoyed far less privacy protection.
The Fourth Amendment to the Constitution provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause….”
The purpose of this amendment is to protect against unreasonable searches and seizures where there is a reasonable expectation of privacy.
As a result, this protection requires the government to obtain a warrant before searching your home or recording your telephone conversations. At issue in United States v. Warshak, — F.3d —-, 2010 WL 5071766 (6th Cir. 2010), was whether that same protection should be extended to email.
Steven Warshak owned and operated a company called Berkeley Premium Nutraceuticals, Inc., whose activities drew the attention of the U.S Government due to allegations of money laundering and wire fraud.
As with many businesses, email played a vital role in the day-to-day operations of the company. During its investigation, the U.S. Government directed Berkeley’s internet service provider (“ISP”) to preserve the contents of any email sent to or from Warshak’s email account. This request was made pursuant to the Stored Communications Act 18 U.S.C. §§ 2701-2712 (“SCA”).
Passed in 1986, the SCA governs the compelled disclosure of “stored wire and electronic communications and transactional records.” In certain situations, the SCA allows the government to obtain email without a warrant.
That is precisely what happened in Warshak. For almost two years, Warshak had no idea that his ISP was storing copies of his email for the U.S. Government. Eventually, the government obtained approximately 27,000 emails, many of which could be considered highly incriminating.
Warshak challenged the government’s action on the grounds that without a warrant, it amounted to an unlawful search and seizure.
On appeal, the Sixth Circuit sided with Warshak and subsequently extended the Fourth Amendment to include electronic mail. The court reached this conclusion by building on the Supreme Court case of Katz v. United States, 389 U.S. 347 (1967) which found that wiretapping telephone calls implicated the Fourth Amendment due to “the vital role the public telephone has come to play in private communication.”
As with the telephone, the court reasoned, email is an indispensable part of the Information Age. People use email to communicate with children, with spouses, or with employers.
Confidential information is shared via email with doctors, lawyers and various financial institutions. When you consider the full range of information shared and the level of detail available, email has the potential to be more intrusive then a phone call could ever be.
As reasonable as this conclusion may sound, the court still had to overcome several key objections.
The government argued that there was no reasonable expectation of privacy because the ISP’s terms of service specifically allowed it to access user emails for certain purposes.
Further, since the user disclosed the context of his email to a third party, in this case the ISP, he could not reasonably expect the conversation to be private.
However, the court wisely rejected both of these arguments. Instead, the court described an ISP as the functional equivalent of a post office or telephone company. Just as the telephone company has the ability to listen in on telephone calls, ISPs also have the ability to access a user’s email.
Similarly, a physical letter must be entrusted to the post office for delivery in the same way an email is entrusted to an ISP.
That is entrustment is necessary for the communication to be possible and therefore does not divest the communication of its Fourth Amendment protection. Given the similarities between email and traditional forms of communication, the court held that “it would defy common sense to afford emails lesser Fourth Amendment protection.”
Interestingly, the court declined to rule that the terms of service would never be sufficient to eliminate the reasonable expectation of privacy in emails.
It is possible that an ISP’s intent to audit, inspect or monitor a subscriber’s email could remove the protection granted under the Fourth Amendment. Some email providers, such as Google’s popular Gmail service, scan the content of email for the purposes of delivering targeted ads and web links.
Google maintains that this process is completely automated and that no “human” reads a user’s email.
The question remains whether this level of third-party disclosure is sufficient to negate protections of the Fourth Amendment. For now, this decision is a big win for privacy advocates who have sought greater privacy protection for email communication.
One additional holding that should not be overlooked is that the SCA was ruled unconstitutional to the extent that it allows the government to obtain emails without a warrant.
The SCA has long been considered outdated based on the antiquated way in which it distinguished between online service providers but also because it was enacted before much of the internet’s potential was realized or even understood.
It should come as no surprise that a few days after this opinion was released, the Obama administration called for the creation of a “Privacy Policy Office” to work with the Federal Trade Commission and other agencies to assess privacy protections. Hopefully, this decision will pave the way for Congress to reform the SCA to reflect the changing technological landscape.
It was just a simple test message sent between two computers sitting next to each other on a desk. At the time, Tomlinson had no idea of the ultimate ramifications of this invention. Today, email has revolutionized the way we communicate.
With an estimated 250 billion messages sent every day, email is used by individuals and corporations alike to both conduct business and share information across the internet. From bank statements to greeting cards, information that was once sent via the U.S. Postal service is now sent by email.
Although not completely replacing either the telephone or the U.S Postal service, email has become the de facto standard for daily communication for millions of Americans. Until recently, email enjoyed far less privacy protection.
The Fourth Amendment to the Constitution provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause….”
The purpose of this amendment is to protect against unreasonable searches and seizures where there is a reasonable expectation of privacy.
As a result, this protection requires the government to obtain a warrant before searching your home or recording your telephone conversations. At issue in United States v. Warshak, — F.3d —-, 2010 WL 5071766 (6th Cir. 2010), was whether that same protection should be extended to email.
Steven Warshak owned and operated a company called Berkeley Premium Nutraceuticals, Inc., whose activities drew the attention of the U.S Government due to allegations of money laundering and wire fraud.
As with many businesses, email played a vital role in the day-to-day operations of the company. During its investigation, the U.S. Government directed Berkeley’s internet service provider (“ISP”) to preserve the contents of any email sent to or from Warshak’s email account. This request was made pursuant to the Stored Communications Act 18 U.S.C. §§ 2701-2712 (“SCA”).
Passed in 1986, the SCA governs the compelled disclosure of “stored wire and electronic communications and transactional records.” In certain situations, the SCA allows the government to obtain email without a warrant.
That is precisely what happened in Warshak. For almost two years, Warshak had no idea that his ISP was storing copies of his email for the U.S. Government. Eventually, the government obtained approximately 27,000 emails, many of which could be considered highly incriminating.
Warshak challenged the government’s action on the grounds that without a warrant, it amounted to an unlawful search and seizure.
On appeal, the Sixth Circuit sided with Warshak and subsequently extended the Fourth Amendment to include electronic mail. The court reached this conclusion by building on the Supreme Court case of Katz v. United States, 389 U.S. 347 (1967) which found that wiretapping telephone calls implicated the Fourth Amendment due to “the vital role the public telephone has come to play in private communication.”
As with the telephone, the court reasoned, email is an indispensable part of the Information Age. People use email to communicate with children, with spouses, or with employers.
Confidential information is shared via email with doctors, lawyers and various financial institutions. When you consider the full range of information shared and the level of detail available, email has the potential to be more intrusive then a phone call could ever be.
As reasonable as this conclusion may sound, the court still had to overcome several key objections.
The government argued that there was no reasonable expectation of privacy because the ISP’s terms of service specifically allowed it to access user emails for certain purposes.
Further, since the user disclosed the context of his email to a third party, in this case the ISP, he could not reasonably expect the conversation to be private.
However, the court wisely rejected both of these arguments. Instead, the court described an ISP as the functional equivalent of a post office or telephone company. Just as the telephone company has the ability to listen in on telephone calls, ISPs also have the ability to access a user’s email.
Similarly, a physical letter must be entrusted to the post office for delivery in the same way an email is entrusted to an ISP.
That is entrustment is necessary for the communication to be possible and therefore does not divest the communication of its Fourth Amendment protection. Given the similarities between email and traditional forms of communication, the court held that “it would defy common sense to afford emails lesser Fourth Amendment protection.”
Interestingly, the court declined to rule that the terms of service would never be sufficient to eliminate the reasonable expectation of privacy in emails.
It is possible that an ISP’s intent to audit, inspect or monitor a subscriber’s email could remove the protection granted under the Fourth Amendment. Some email providers, such as Google’s popular Gmail service, scan the content of email for the purposes of delivering targeted ads and web links.
Google maintains that this process is completely automated and that no “human” reads a user’s email.
The question remains whether this level of third-party disclosure is sufficient to negate protections of the Fourth Amendment. For now, this decision is a big win for privacy advocates who have sought greater privacy protection for email communication.
One additional holding that should not be overlooked is that the SCA was ruled unconstitutional to the extent that it allows the government to obtain emails without a warrant.
The SCA has long been considered outdated based on the antiquated way in which it distinguished between online service providers but also because it was enacted before much of the internet’s potential was realized or even understood.
It should come as no surprise that a few days after this opinion was released, the Obama administration called for the creation of a “Privacy Policy Office” to work with the Federal Trade Commission and other agencies to assess privacy protections. Hopefully, this decision will pave the way for Congress to reform the SCA to reflect the changing technological landscape.
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