Landmark ruling protects email from secret searches

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

Comments

[Bonnie Lyon]

My ex son-in-law broke into my house and put eblaster on my computer while I wasn't home. This enabled him to read my emails discussing the case with my son in Virginia. The judge in the case let my son-in-law stand and read the emails in court. My-son-in-law won just about everything, my daughter nothing. My son-in-law makes $100,00+ a year and the judge ordered him to pay $400 a month for three children. I feel like the emails sealed the deal.

[Sophiehoneysuckle]

Very interesting! I wonder if the same law applies here in the U.K? That has got me thinking...

[Cre8Tiva]

who knows where things go when we hit the send button...i have often wondered about this...it is too easy to be watched and recorded...privacy...does it exist...even with laws...thanks for provoking thought...blessings, rebecca

[Laura]

This isn't so much a response to this particular post (I'm sure you know how I feel about all of that) but to tell you once again, after reading this and the art nouveau post, and your poem 'Haunted' and your meme post, that I so love coming here to your perfect parfait of a life's story.
Xoxo,
L

[Footpad]

Thank you for sharing this with us. It is, indeed, a sign of sanity during an administration seemly bent on repealing the civil liberties of the people they claim to represent.

-- f

[JanePoe (aka Deborah)]

Hallelujah!!!!!!!!!!!!!!!!!!!!!

An island of sanity in this ocean of Bush-crazed nonsense.

[Sanjay]

Tara, Thank you for stopping by my blog, and for your kind words.

You have a wonderful blog I must say and I have visited it in the past before Madelyn mentioned you.

My friend Lotus of http://lotusreads.blogspot.com/ loves your blog and directed me to yours originally. I have to say she was spot on with her recommendation (as she most always is) and I can see why she nominated you for the thinking blogger award as well.
re: your post..
I think while I do derive comfort from this recent ruling I won’t celebrate because dear leader has always felt he can ignore any law that Congress passes with his signing statements (more than a 1000). I am sure this ruling won’t stop this administration either. I hate to sound so cynical though. :-/
I plan to read your blog more often from now.

[holli]

Uh.. yes. I just watched a special about how Google could easily turn into the next big brother if they sold out and their information fell into the wrong hands. They have every bit of information from every search, every email - every EVERYTHING - from the day they started - saved on their computers at Google central. Not a fact I find comforting when I see politicians covorting at Google headquarters to amp up their campaigns.

[Colette]

This, in light of the recent "disappearance" of incriminating emails in the government itself....makes the mind boggle, doesn't it!

[ally bean]

Good news for once. Love the poster.

[pam aries]

Aieee! Big Brother! It is rather frightening to think about the government peeking and lurking..What am I saying..they do it ALL the time! Sometimes I just want to go live in the forest and forage for berries..ha!

[tinker]

Thank heaven some semblance of civil liberties still exist! Though given the average e-mail content I receive, it makes me laugh a little picturing some middle-aged male agent having to read poems about friendship, dancing cat videos, grandkid photos, etc., I doubt he'd be able to stay awake through them all. It would serve them right, for their intrusion, lol.

[Charmaine Thompson]

That poster could have been South Africa up until 1994 - we were "afraid" of the "Rooi Gevaar" (Red Danger) - now we still have our "watchmen" called the Scorpions....different name same game. Sometimes good sometimes bad.