The Sixth Circuit Court of Appeals has ruled that the Constitution establishes greater protections for stored email than is set out in federal laws. In Warshak v. United States, the government compelled an internet service provider to reveal 27,000 emails without securing a warrant or giving notice to the customer, Steven Warshak. The Court held that the seizure violated Warshak's Fourth Amendment rights. In response to the Government's assertions that its actions were based on the Stored Communications Act, the Court responded "to the extent that the SCA purports to permit the government to obtain such emails warrantlessly, the SCA is unconstitutional." The Sixth Circuit joins the First Circuit in finding that email is subject to strong protections under electronic privacy laws. EPIC joined a group of civil liberties organizations and Professor Orin Kerr to submit a "Friend of the Court" brief in U.S. v. Councilman, a First Circuit case concerning email and the Wiretap Act. A separate amicus brief in Councilman from leading technology experts explained that privacy protection is "critical for electronic mail." For more information, see EPIC: Wiretapping.
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Communications Law and Policy
Jerry Kang and Alan Butler