Email Deserves Same Constitutional Protections as Phone Calls, Postal Mail

San Francisco - The government must have a search warrant before it can search and seize emails stored by email service providers, according to a friend-of-the-court brief filed last week by the Electronic Frontier Foundation (EFF) and a coalition of civil liberty groups. EFF filed the brief in support of a landmark district court decision finding that the federal Stored Communications Act (SCA) violates the Fourth Amendment by allowing secret, warrantless searches and seizures of email stored with a third party.

EFF's amicus brief was filed in Warshak vs. United States, a case 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. The government, which has routinely used the SCA over the past 20 years to secretly obtain stored email without a warrant, appealed the decision to the 6th U.S. Circuit Court of Appeals. That court is now primed to be the first circuit court ever to decide whether email users have a "reasonable expectation of privacy" in their stored email.

"Email users clearly expect that their inboxes are private, but the government argues the Fourth Amendment doesn't protect emails at all when they are stored with an ISP or a webmail provider like Hotmail or Gmail," said EFF Staff Attorney Kevin Bankston. "EFF disagrees. We think that the Fourth Amendment applies online just as strongly as it does offline, and that your email should be as safe against government intrusion as your phone calls, postal mail, or the private papers you keep in your home."

The EFF brief was also signed by the American Civil Liberties Union, the ACLU of Ohio, and the Center for Democracy and Technology.

For the full amicus brief:


Kevin Bankston
Staff Attorney
Electronic Frontier Foundation

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