Out of Left Field
January 04, 2011 by David Rudolf
We all use email everyday, much more often than we use the U.S. Mail, faxes or even telephones. And we have all read horror stories about email evidence in civil and criminal cases. But most of us haven’t given a lot of thought to whether the Fourth Amendment protects emails from seizure by the government without a warrant supported by probable cause.
The issue, of course, is whether we have a reasonable expectation of privacy in our email exchanges, despite the fact that our internet service providers (ISP’s) can access those emails on their servers. The Sixth Circuit, in its 90 page opinion in United States v. Warshak (December 14, 2010), has concluded that we do indeed have such an expectation of privacy, and furthermore that it is reasonable. The government therefore needs a search warrant to obtain our emails from the ISP we use. A subpoena is not enough.
Basically, the court in Warshak analogized ISP’s to the Postal Service and the telephone companies, and reasoned that if communications using those intermediaries is entitled to Fourth Amendment protection, so are emails using ISP’s.
Given the “war against terror,” a war that presumably can never end (as it can never be officially “won”), I have little doubt that this issue will eventually reach the United States Supreme Court. But I have great doubt that the majority of the Court as currently constituted will agree with the Sixth Circuit, over the claims of the Department of Justice that the government needs to be able to subpoena such information quickly and secretly to protect national security. I can easily see Chief Justice Roberts, Justice Alito et. al. concluding that in our current “information age,” where so much that is intended to be private nevertheless becomes public, any expectation of privacy in emails (which, after all, can be forwarded to anyone with a click) is simply not “reasonable.”
One can only hope that the Originalist in Justice Scalia will recall the words of Ben Franklin, which I paraphrase (with apologies to Ben): Those who are willing to sacrifice essential liberty to secure temporary safety deserve (and end up with) neither!