Court upholds email privacy

About a year ago I wrote about a Cincinnati federal district court’s decision which held that we have a Fourth Amendment expectation of privacy in emails being stored by ISPs.

That decision was important because the current federal statutory framework governing law enforcement access to stored emails (and emails in transmission, but that’s not what we’re concerned with here) is based on the premise that data we “knowingly” share with third-parties, like ISPs, is NOT protected by the Fourth Amendment. If it is not, then law enforcement officers don’t have to get a search warrant to gain access to emails, etc.

The Sixth Circuit Court of Appeals just affirmed the district court’s decision: Warshak v. U.S. (docket # 06-4092, opinion # 07a0225p.06). You can find it here.

The government will almost certainly ask the Sixth Circuit to rehear the case, with all the judges of the circuit sitting on the panel (this was the usual three-judge panel). If they lose again, they’ll almost certainly try to take the case to the Supreme Court which, I think, will probably take it.