E-mail Privacy Gets a Win in Court

  • Share
  • Read Later
Glenn Hartong / The Cincinnati Enquirer / AP

Steve Warshak, President and founder of Berkeley Premium Nutraceuticals, stands in the company's headquarters and call center in Cincinnati.

It's getting so you just can't have a decent scandal anymore without some damning e-mails.

The House Oversight Committee played the e-mail card Monday by declaring that records of electronic missives for more than 50 White House staffers with accounts at the Republican National Committee had gone missing. Democrats suspect the accounts were used improperly to plot the ouster of U.S. attorneys, so the lawmakers are more than eager to get their hands on the messages.

You can't blame them, given how powerful e-mail has become as evidence in cases of alleged sexual indiscretion (Wal-Mart marketing exec Julie Roehm's juicy messages to a subordinate], corporate wrongdoing (remember former investment banker Frank "Clean up those files" Quattrone, who was ultimately cleared?) and political shenanigans, as the U.S. attorneys controversy has already shown. E-mails are all but ubiquitous, often revealing and relatively easy for the government to get.

Until now.

In a startling decision this week, a federal appeals court in Cincinnati ordered the feds to keep their mitts off e-mail stored with an Internet Service Provider (ISP) like Yahoo! unless they notify the sender first or show that he doesn't consider the e-mail private. The ruling was based on the conclusion that most people think e-mail, like letters or phone conversations, is private, and protected under the Fourth Amendment against unreasonable government searches and seizures.

That seems a pretty fair conclusion, but the amazing thing is that no court has ever reached it before. In other words, we've been living under a legal regime that essentially assumes we don't much care if, say, Alberto Gonzales sees our e-mails after they leave our outbox. So for a federal appeals court to upend that regime is a big deal, as experts like Professor Orin Kerr at George Washington University Law School will tell you.

"If this case sticks around," says Kerr, "it's the most important decision involving the Fourth Amendment in a long time for new technologies."

That "if" refers to the possibility that the decision will be overturned by the full appeals court or even the Supreme Court, a fervent hope of the government and others who want to smooth online investigations of suspected terrorists and other potential villains. But "if you're worried about privacy," says Kerr, "this is a terrific decision."

It came about because of the allegedly fraudulent behavior of Steven Warshak and his company, which sells herbal supplements and diet and penis-enlargement pills. He was indicted last year on 107 counts of wire fraud, bank fraud and other crimes allegedly connected with the sale of the pills. He has pleaded not guilty to the charges.

While investigating Warshak in 2005, the feds got a court order for ISPs Yahoo! and Nuvox Communications to turn over e-mails in Warshak's accounts. The order was issued under the 1986 Stored Communications Act, which was written long before most Americans had ever heard of e-mail but said the government just has to show the e-mails are relevant to an investigation — no need to notify the e-mails' sender or to get a warrant based on probable cause that the sender did something wrong. The theory is that the sender has voluntarily disclosed the e-mails to the ISPs and so given up any claim that they are private. It's like the bank having your credit card records and the telephone company having your phone records — you gave them that information voluntarily, so they're allowed to turn it over to the feds, as Yahoo! and Nuvox did with Warshak's e-mails.

But when Warshak found out what the ISPs had done, he filed a lawsuit in which he argued that e-mails were different. Sure, he stored them with the ISPs, but he didn't give the ISPs permission to read them any more than we give the phone company permission to listen in on our phone calls. In other words, he reasonably expected that the contents of the e-mails were private, and if the government wanted them, it would have to prove otherwise, get a warrant or allow him to argue why prosecutors couldn't have them. On Monday, the appeals court agreed with Warshak and blocked the feds from seizing any more e-mails.

Prosecutors say the case against Warshak is strong anyhow, so the decision may not help him much. But it does give our e-mails the highest level of protection after decades of uncertainty over how private they might be. "How the Fourth Amendment applies online has been a complete mystery," says Kerr. "It's been a battle of analogies: is e-mail like a postcard or a phone call or first-class letter? There is a wide range of possible solutions, and this [decision] is at the far end of the most privacy protection."

Not that federal prosecutors — as well as people filing lawsuits and congressmen seeking dirt — won't continue to do whatever it takes to get their hands on an opponent's e-mail. As evidence, it's just too delicious to pass up. That's primarily because many of us still treat it as evanescent, a form of conversation that's gone in a flash. But in tossing potentially damning messages back and forth, not realizing that they'll lurk forever on countless servers, there's a chance that they'll become fodder for yet another scandal played out in the courts.