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Big Win for Common Sense and EFF

The Sixth Circuit Court of Appeals affirmed common sense this week.  In U.S. v. Warshak, the Sixth Circuit ruled the government must obtain a search warrant prior to a search and seizure of our emails stored by email providers. The Sixth Circuit decision closely followed arguments of EFF in its amicus brief, holding that email shares fundamental similarities with traditional forms of communication such as postal mail and telephone calls and that it would “defy common sense to afford emails lesser Fourth Amendment protection.” The Court went on to state:

“…It follows that email requires strong protection under the Fourth Amendment; otherwise the Fourth Amendment would prove an ineffective guardian of private communication, an essential purpose it has long been recognized to serve…. [T]he police may not storm the post office and intercept a letter, and they are likewise forbidden from using the phone system to make a clandestine recording of a telephone call–unless they get a warrant, that is. It only stands to reason that, if government agents compel an ISP to surrender the contents of a subscriber’s emails, those agents have thereby conducted a Fourth Amendment search, which necessitates compliance with the warrant requirement.…”

The Department of Justice obtained emails during its criminal investigation after demanding Warshak’s email provider preserve copies of future email. The government achieved this violation of privacy by misuse of the Stored Communication Act (SCA) which allows the government to seize email already stored by the service provider.

The importance of the Sixth Circuit decision cannot be overstated. To date, this is the only federal appellate decision addressing the level of protection for email communications. Thank you to EFF, this decision was a big win for you and common sense.

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