The United States government must have a search warrant before it can search and seize emails stored by email service providers, according to a brief filed last week by the San Francisco-based Electronic Frontier Foundation (EFF) and a coalition of civil liberty groups. The brief was filed to support a landmark district court decision that the federal Stored Communications Act (SCA) violates the Fourth Amendment by allowing secret, warrantless searches and seizures of email stored with a third party.
EFF's brief was filed in Warshak vs. United States, a federal court case in the Southern District of Ohio brought by Steven Warshak to stop the government's repeated secret searches and seizures of his stored email. The district court ruled that the government cannot use the SCA to obtain stored email without a warrant or prior notice to the email account holder. The government, which has routinely used the SCA over the past 20 years to secretly obtain stored email without a warrant, appealed the decision to the 6th U.S. Circuit Court of Appeals. That court is now primed to be the first circuit court ever to decide whether email users have a "reasonable expectation of privacy" in their stored email.
"Email users clearly expect that their inboxes are private, but the government argues the Fourth Amendment doesn't protect emails at all when they are stored with an ISP or a webmail provider like Hotmail or Gmail," said EFF Staff Attorney Kevin Bankston. "EFF disagrees. We think that the Fourth Amendment applies online just as strongly as it does offline, and that your email should be as safe against government intrusion as your phone calls, postal mail, or the private papers you keep in your home."