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Tech Notes

Court Protects Email from Secret Government Searches
By EFF
Jun 19, 2007 - 6:58:19 PM

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SAN FRANCISCO, CA -- The government must have a search warrant before it can secretly seize and search emails stored by email service providers, according to a landmark ruling Monday in the 6th U.S. Circuit Court of Appeals. The court found that email users have the same reasonable expectation of privacy in their stored email as they do in their telephone calls -- the first circuit court ever to make that finding.

Over the last 20 years, the government has routinely used the federal Stored Communications Act (SCA) to secretly obtain stored email from email service providers without a warrant. But today's ruling -- closely following the reasoning in an amicus brief filed the by the Electronic Frontier Foundation (EFF) and other civil liberties groups -- found that the SCA violates the Fourth Amendment.

"Email users expect that their Hotmail and Gmail inboxes are just as private as their postal mail and their telephone calls," said EFF Staff Attorney Kevin Bankston. "The government tried to get around this common-sense conclusion, but the Constitution applies online as well as offline, as the court correctly found. That means that the government can't secretly seize your emails without a warrant."

Warshak v. United States was brought in the Southern District of Ohio federal court by Steven Warshak to stop the government's repeated secret searches and seizures of his stored email using the SCA. The district court ruled that the government cannot use the SCA to obtain stored email without a warrant or prior notice to the email account holder, but the government appealed that ruling to the 6th Circuit. EFF served as an amicus in the case, joined by the American Civil Liberties Union and the Center for Democracy & Technology. Law professors Susan Freiwald and Patricia Bellia also submitted an amicus brief, and the case was successfully argued at the 6th Circuit by Warshak's counsel Martin Weinberg.

For the full ruling in Warshak v. United States: www.eff.org/legal/cases/warshak_v_usa/6th_circuit_decision_upholding_injunction.pdf

For EFF's resources on the case, including its amicus brief: www.eff.org/legal/cases/warshak_v_usa/

For this release: www.eff.org/news/archives/2007_06.php#005321

About EFF

The Electronic Frontier Foundation is the leading civil liberties organization working to protect rights in the digital world. Founded in 1990, EFF actively encourages and challenges industry and government to support free expression and privacy online. EFF is a member-supported organization and maintains one of the most linked-to websites in the world at www.eff.org/


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