Users have reasonable expectation of privacy in emails sent over commercial ISPs.
"Smilin' Bob" must be really grinning today.
A victory for cyber privacy was won today in the Sixth Circuit’s ruling in Warshak v. U.S. The Court upholds a district court’s preliminary injunction prohibiting the seizure of email communications without a warrant, or a subpoena issued with notice to the sender. The Court held “e-mail users maintain a reasonable expectation of privacy in the content e-mails that are stored with, or sent or received through, a commercial ISP.”
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The case arose in the context of a federal investigation of an herbal supplement company, . Berkley Premium Nutraceuticals. The company is perhaps best known for its advertisements featuring “Smilin’ Bob,” whose happy face, the ads suggest, is evoked by the “natural male enhancement” offered by the company’s supplements.
Federal investigators had searched emails obtained from Warshak’s ISP without a warrant, and without notice to Warshak, president of the company. While the government failed to follow the procedure set forth in the statute strictly, the method used to obtain the emails pursuant to the Stored Communications Act, 18 U.S.C. § 2703 (SCA), which allows for seizure of emails without a warrant or notice to the user, if a court determines the emails may be relevant to an ongoing criminal investigation. The parties agreed that this standard fell short of probably cause.
The Court compared email communications to both sealed hard copy communications sent through the mail, and telephone calls, both of which carry an expectation of privacy. The Court rejected the notion that because ISPs have the capability to access the contents of emails, there is no expectation of privacy.
The Sixth Circuit cited the Ninth Circuit’s recent opinion in U.S. v. Heckencamp, which upheld a reasonably expectation of privacy despite Heckencamp’s use of the university network, because the university had no blanketing monitoring system.
Of course, both Warshak and Heckencamp leave open the situation where there is a policy of monitoring of content. So check your user policies of your provider before assuming your email is private. Big brother may be watching – and may have company.
