Amicus Brief Helps Protect Email Privacy

The Sixth Circuit Court of Appeals ruled Monday that the government must have a search warrant before it can secretly seize and search emails stored by email service providers.

In reaching its decision in Warshak v. United States, the court closely followed the reasoning in an amicus brief filed in the case by the Electronic Frontier Foundation (EFF), the ACLU, and the Center for Democracy and Technology (CDT).

The brief argued, and the court found, that email users have the same reasonable expectation of privacy in their stored email as they do in their telephone calls. This decision is the first by a circuit court to recognize this level of Fourth Amendment protection for email.

Local law professor, Susan Freiwald, of the University of San Francisco Law School, also co-authored an amicus brief in the case.

The Government had previously obtained a court order under the Stored Communications Act (SCA) to access stored copies of plaintiff Steven Warshak's email without notifying Warshak.

The Sixth Circuit held that the Fourth Amendment does not allow the government to use the SCA – which requires less than the full "probable cause" level of suspicion required to obtain a warrant -- to obtain stored email without prior notice to the email account holder.