The US government needs a search warrant to seize and search emails stored by email service providers. The landmark ruling Monday in the 6th U.S. Circuit Court of Appeals determined that email users have the same reasonable expectation of privacy in their stored email as in their telephone calls.
Over the last 20 years, the government has routinely used the federal Stored Communications Act (SCA) to secretly obtain stored email from email service providers without a warrant. But the court's ruling - closely following reasoning in a brief filed by the Electronic Frontier Foundation (EFF) and other civil liberties groups - determined that the SCA violates the Fourth Amendment.
"Email users expect that their Hotmail and Gmail inboxes are just as private as their postal mail and their telephone calls," said EFF Staff Attorney Kevin Bankston. "The government tried to get around this common-sense conclusion, but the Constitution applies online as well as offline, as the court correctly found. That means that the government can't secretly seize your emails without a warrant."
The case Warshak v. United States was brought in the Southern District of Ohio federal court 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, but the government appealed that ruling to the 6th Circuit. EFF served as an amicus in the case, joined by the American Civil Liberties Union and the Center for Democracy & Technology. Law professors Susan Freiwald and Patricia Bellia also submitted an amicus brief and the case was successfully argued at the 6th Circuit by Warshak's counsel Martin Weinberg.
Judge orders FBI to release records
Meanwhile, a judge has ordered the FBI to release agency records about its abuse of National Security Letters (NSLs) to collect Americans' personal information. The ruling came a day after the Electronic Frontier Foundation urged the judge to immediately respond in its lawsuit over agency delays.
In April, EFF sued the FBI for failing to respond to a Freedom of Information Act (FOIA) request about the misuse of NSLs, as revealed in a Justice Department report. This week, the Washington Post uncovered more evidence of abuse. On Thursday, the EFF urged the judge to force the FBI to stop stalling and release its records on the program.
"The reports we've seen so far about NSL abuse are just the tip of the iceberg," said EFF Staff Attorney Marcia Hofmann. "FBI officials told the Washington Post that there have likely been several thousand total instances of misuse. Americans deserve answers about this scandal and how the FBI has abused its power to spy on ordinary citizens."
Under the US Patriot Act, the FBI can use NSLs to obtain private records about anyone's domestic phone calls, emails and financial transactions without any court approval -- as long as it claims the information could be relevant to a terrorism or espionage investigation. Without a judge's oversight, the law is ripe for such abuse that has been uncovered in these recent reports.
"The law itself is the source of the problem. It's time for Congress to repeal these expanded NSL powers and protect Americans from this abuse of authority," said Hofmann.The judge's order requires the FBI to process 2500 pages of NSL-related records by July 5 and then 2500 pages every 30 days thereafter.
Poster from Micah Wright's Propaganda Remix Project