Beginning of the end of the Stored Communications Act?

December 16, 2010 10:25 AM

A shady "male enhancement" peddler is the unlikely subject of a landmark case holding that e-mails are not subject to warrantless searches.

The Sixth Circuit Court of Appeals concluded that there is a reasonable expectation of privacy for e-mails under the Fourth Amendment and that the government cannot subpoena internet service providers for private e-mails, but must instead get a warrant. (The money analysis starts on page 14.) Due to the way the case was decided, the issue is unlikely to make it to the Supreme Court.

This decision is significant for several reasons. First, it likely renders most or all applications of the subpoena power under Stored Communications Act unconstitutional. Second, while this case involved garden-variety fraud, the privacy interest in e-mail has broader ramifications for politically sensitive law enforcement initiatives such as terrorism or child pornography if the reasoning of the Sixth Circuit is adopted in other cases, making it harder for police to search e-mail.

posted by *s (15 comments total)

I don't think it makes it harder for the police/government to search email. It makes it harder to introduce what they find into evidence.
posted by spicynuts at 10:39 AM on December 16, 2010 [4 favorites]

It makes it harder to introduce what they find into evidence.

That's probably right, since most email is in cleartext, with copies of messages at various points between sender and recipient.
posted by Blazecock Pileon at 10:42 AM on December 16, 2010

If by "...making it harder for police to search e-mail" you mean the they'll have to convince a judge to issue a warrant based on actual evidence that a crime may be being committed, (rather than doing what they want, when they want) then that seems like a good thing.
posted by copley at 10:43 AM on December 16, 2010 [1 favorite]

Due to the way the case was decided, the issue is unlikely to make it to the Supreme Court

Why is that?
posted by motorcycles are jets at 10:53 AM on December 16, 2010

Due to the way the case was decided, the issue is unlikely to make it to the Supreme Court.

This seems like a very important statement, but I must be missing some explanatory text in the source documents that states why this holds true. Can someone expand?
posted by DoubtingThomas at 10:55 AM on December 16, 2010

As the Volokh post notes, it's the criminal defendant that would have to seek review and he's unlikely to get it. Here's why: Basically, the court held that there was a valid privacy interest in e-mail but that the government acted in good faith in relying on the Stored Communications Act because it was valid at the time, so the e-mails come in and the conviction stands. Next time, arguably there won't be a good-faith exception because the court has held that the police need a warrant, so they're on notice. That's the case that has a shot at the Supreme Court. Also, when the government sends something up, it's much more likely to be granted as a practical matter.
posted by *s at 11:15 AM on December 16, 2010

Obviously, I can only really look at the decision from the public interest, but it seems to have served that in both ways — more privacy, plus fewer Smiling Bob commercials. Win-win!
posted by klangklangston at 11:20 AM on December 16, 2010

I don't think it makes it harder for the police/government to search email. It makes it harder to introduce what they find into evidence.

That's not necessarily true. ISPs might object to government subpoenas in order to protect themselves from risk of liability. We would also do well to remember that the fruits of an illegal search must be suppressed. Obtaining documents by subpoena but in violation of the 4th amendment will be a huge mistake if it turns out that they use the subpoenas to build the case to get a warrant because that will make the warrant itself a fruit of a prior warrantless liberty infringement.
posted by Hylas at 11:20 AM on December 16, 2010

I don't think it makes it harder

That was the basis for the fraud investigation.
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posted by Greg Nog at 12:07 PM on December 16, 2010 [7 favorites]

We would also do well to remember that the fruits of an illegal search must be suppressed.

We would also do well to remember that the fruits of an illegal search must be suppressed are sometimes surpressed, but not often enough nor with enough vigor down the brances of the "poisonous tree" to be a significant deterrent to police or prosecutorial misconduct.

FTFY.
posted by spacewrench at 12:18 PM on December 16, 2010 [1 favorite]

spelling facepalm x2
posted by spacewrench at 12:20 PM on December 16, 2010

Your work email account is not, however, private. It belongs to your employer.
posted by theora55 at 1:55 PM on December 16, 2010

ISPs might object to government subpoenas in order to protect themselves from risk of liability.

I seriously doubt they'll give a damn about any liability, in part because ISPs make money off of selling people's private data (see this article which was cited by Wikileaks) and they're not going to give that up easily, and in part because who do you think is going to go after them for this alleged liability? Certainly not the DOJ (see linked article).

While I doubt ISPs will start refusing to give up data to law enforcement (cha ching!), what I'd like to know is: will this new ruling put a damper on law enforcement making the requests in the first place? Has it now become illegal for them to do so? Or what? I'm a little foggy on the practical implications here.
posted by Marla Singer at 2:47 PM on December 16, 2010

Is there still a reasonable expectation of privacy when you send the e-mail in question to everyone in the Western Hemisphere?
posted by Kid Charlemagne at 12:13 AM on December 17, 2010