Cincinnati - The Electronic Frontier Foundation (EFF) and other civil liberties groups filed an amicus brief in Warshak v. United States urging the 6th U.S. Circuit Court of Appeals Wednesday to hold that the government's seizure of email without a warrant violated the Fourth Amendment and federal privacy statutes, as well as the Justice Department's own surveillance manual.

During its criminal investigation, the Department of Justice illegally ordered defendant Stephen Warshak's email provider to prospectively "preserve" copies of his future emails, which the government later obtained using a subpoena and a non-probable cause court order. The government accomplished this "back door wiretap" by misusing the Stored Communications Act (SCA), which is only supposed to be used for obtaining emails already in storage with a provider.

In Wednesday's filing, EFF argues that the government's seizure violated federal privacy laws and Warshak's Fourth Amendment expectation of privacy in his email. As a result, the illegally seized emails should have been suppressed by the district court where Warshak was tried. All told, the government acquired over 27,000 emails spanning over six months from Warshak's email provider, all without probable cause.

"The Justice Department not only violated the Fourth Amendment and federal privacy statutes but its own surveillance manual when it conducted this 'back door wiretap' to intercept six months worth of emails without a warrant," said EFF Senior Staff Attorney Kevin Bankston. "Thankfully, this abuse has given the appeals court yet another opportunity to clarify that the Fourth Amendment protects the privacy of email against secret government snooping, even when it's in the hands of an email provider."

EFF filed a similar amicus brief with the 6th Circuit in 2006 in a civil suit brought by Warshak against the government for its warrantless seizure of his emails. There, the 6th Circuit agreed with EFF that email users have a Fourth Amendment-protected expectation of privacy in the email they store with their email providers, though that decision was later vacated on procedural grounds.

"The government's illegal email surveillance in this case raises troubling questions about how often the Justice Department has bent the law or broken it outright in other criminal investigations," said Bankston. "This 'back door wiretap' is yet another demonstration of why Congress must update the federal surveillance statutes to require comprehensive reporting on how the government is using its spying authorities."

The amicus brief was also signed by the ACLU of Ohio and the Center for Democracy and Technology.

For the full amicus brief:


Kevin Bankston
Senior Staff Attorney
Electronic Frontier Foundation

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