On December 14, 2010, in United States v. Warshak, the Sixth Circuit U.S. Court of Appeals held that government agents violated the defendant’s Fourth Amendment rights when they seized his stored emails without a warrant, pursuant to an outdated law, the Stored Communications Act of 1986 (SCA). “An Internet subscriber enjoys a reasonable expectation of privacy in the contents of emails that are stored with, or sent or received through, a commercial Internet Service Provider,” the court said.
Warshak is an interesting appellate opinion stemming from a multi-defendant trial in the Southern District Court of Ohio federal district court. The case involved multiple defendants who had varied interests in the company that sold the widely advertised product Enzyte, an herbal supplement first marketed by Berkeley Premium Nutraceauticals alleging to increase the size of a man’s erection. The company changed it’s advertising approach in 2009 to represent the product as a as a “male enhancement” that assists in erectile dysfunction. The defendants were charged with 112 counts including conspiracy to commit mail fraud, wire fraud and money laundering. The jury found that the government’s evidence presented proved that representations made by the company were based upon fictitious doctors and bogus studies. According to the opinion, the company profited over $500 million dollars.
The import of the case is that the federal appellate court found that we have, in almost all cases, a Fourth Amendment protection against seizures and searches of our emails because we have a reasonable expectation of privacy in emails even though they are transmitted to the intended recipient through internet service providers. (We generally do not have a reasonable expectation of privacy and 4th amendment protection to communications made when a third party is present). The court equated emails to regular U.S. mail in that both forms of communication are handled or stored by entities other than the individual to whom our communication is directed. Just like our communications through the U.S. Mail, the government does not have the authority to order the U.S. Postal service to open our mail without probable cause or without obtaining a search warrant. In Warshak the government ordered the Internet Service Provider to store all of Warshak’s emails. Then, at some point, they obtained 27,000 emails from the ISP and found very incriminating information contained in some of his personal emails.