Sixth Circuit e-mail privacy case

The Sixth Circuit Court of Appeals has ruled that under the Stored Communications Act of 1986, e-mail held by an Internet service provider was “roughly analogous to sealed letters in which the sender maintains an expectation of privacy, and requires law enforcement officials to obtain a warrant based on a showing of probable cause as a prerequisite to securing that e-mail,” upholding a district court’s injunction against the federal government in Warshak v. United States.

Plaintiff Steven Warshak had been under investigation on several allegations in Spring 2005, and the government had managed to obtain an order from a district court magistrate directing acquisition. That order, on May 6, 2005, was shown to have been issued “based on ‘specific & articulable facts showing that there was reasonable grounds to believe that the records or other information sought were relevant and material to an ongoing criminal investigation,” was issued under seal prohibiting the provider from any disclosure, and that “the notification by the government otherwise required under 18 U.S.C. §2703 (b)(1)(B) was to be delayed for ninety days.” On Sept. 12, 2005, an almost identical order to a second provider was obtained.

On May 31, 2006, more than a year afterward, the government contacted the plaintiff and notified him of both orders and their requirements; conceding that it had violated the statute by waiting for over a year without providing notice of the e-mail seizures or seeking extensions of the delayed notification period, appearing to have also violated the magistrate’s decision as well.

District Court’s injunction

(See article)