US Appeals Court Hands Down Important E-mail Privacy Decision

On June 18, 2007, the United States Court of Appeals for the Sixth Circuit handed down a decision on e-mail privacy that has broad implications for communications providers and law enforcement. In Warshak v United States, the appellate court found that certain sections of the US Stored Communications Act, which collectively permit a court to grant ex parte disclosures of the content of stored e-mail without a warrant, were prima facie unconstitutional. The court found that the content of e-mail is subject to a "reasonable expectation of privacy", which should not be disturbed absent "a warrant, the consent of one of the parties to the conversation, or compelled disclosure accompanied by an opportunity for judicial review." The appellate court also upheld the District Court's preliminary injunction, which barred the government from using a so-called 2703(d) order to seize the contents of e-mails belonging to "any resident of the Southern District of Ohio" from an ISP "without providing the relevant account holder or subscriber prior notice and an opportunity to be heard." However, the court added that the government could avoid this notice requirement by "showing that the account holder maintained no expectation of privacy with respect to the ISP." This ruling, if upheld, would make it more difficult for the government to obtain the content of e-mails stored for longer than 180 days. Click here for the full reasons for judgment in Warshak v United States. Summary by: Jason Young