The Sixth Circuit Court of Appeals held on June 18th, in Warshak v. U.S., that people have a reasonable expectation of privacy in the contents of their email so that the government needs to obtain a search warrant before being able to obtain it.

The issue in the case was whether Warshak had a reasonable expectation of privacy in the email stored on his ISP’s servers. The government had obtained an order, authorized by the Stored Communications Act, to compel Warshak’s ISP to disclose  Warshak’s email to the government without notifying Warshak. The defendant argued that this is improper search and seizure under the Fourth Amendment because of his reasonable expectation of privacy in the email.

The opinion by Judge Martin seems to rely on an analogy between email and phone calls. The courts have long established that there is a reasonable expectation of privacy in the content of phone calls notwithstanding the phone company’s ability to listen to calls. Under the established precedent, the government cannot eavesdrop on calls without a warrant. The Sixth Circuit held that email is similar to a phone call, for expectation of privacy purposes, and the phone call expectation of privacy reasoning applies to email.

The court seems to limit the holding, however. If ISP employees regularly look at customer email in the ordinary course of business or if the ISP has a broad authorization (by EULA or something similar) to look at customer email, then the outcome of the case might have been different as customers would have decreased expectation of privacy. It is also interesting to note that the court recognized that inspection of email by computer programs, such as virus or spam checkers, security filters, or other tools that process email based on its contents, does not decrease the expectation of privacy in one’s email - instead, manual (or otherwise human) inspection of email is necessary to erode the privacy expectation.

The pragmatic comment about this outcome is that it may not apply as broadly as one might think. Most ISPs may, if they do not already have, bury somewhere in their EULAs a "no reasonable expectation of privacy in stored email" language  and this would defeat what the privacy expectation SIxth Circuit has carefully carved out. The ruling leaves much details to be fleshed out and subsequent cases interpreting this ruling may turn out to be as important as this one.

3 Responses to “Reasonable Expectation of Privacy in Email Upheld”

• ada 27September2007

  In regard to reasonable expectation of privacy in email, is it reasonable to expect privacy of one’s identity when sending an email to an elected official? I would assume the contents would be available but in my case, the IT dept for the local government traced the IP and identified who owned the aol account. Nothing illegal or threatening was in the email but unfortunately, I used the home computer of a county employee and that employee’s AOL account screen name to send the email. Now it is assumed the employee wrote the email and could be fired. Somehow, none of this seems constitutional.

• dm 4October2007

  In many cases, it is relatively easy to trace an incoming email to the IP address of the sender, which, then can be used to obtain the identity of the sender (with official process or just by asking the ISP who may be willing to make a favor to the elected official.) Subscriber information (such as the IP address and the physical address of the user) have been often compared to the phone number of a caller - in which case courts have held that there is no reasonable expectation of privacy in such information.

• Republishing Email: The Great Debate - PlagiarismToday 2October2008

  [...] even though you may feel that there is no “reasonable expectation of privacy”, the courts seem to disagree. This is why the government needs a warrant to access your [...]

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