Search & Seizure of Stored Email

Please note that this post is from 2007. Evaluate with care and in light of later events.

Can the government conduct secret, warrantless searches and seizures of email stored with a third party?

In Warshak v. United States, the 6th U.S. Circuit Court of Appeals is currently considering the issue of government access to stored electronic mail without a probable-cause warrant. The appeal originated out of a district court finding that stored electronic mail is subject the 4th Amendment protection, despite the involvement of a third-party ISP: the government’s argument in favor of a “standard of proof of less than probable cause . . . cannot stand.” Although the district court found that, in general, a probable-cause warrant ought to be required for access to electronic mail, it also found that the “terms of the subscriber agreement between the ISP and Warshak” were very important. In the district court’s view, the basis for requiring a warrant in a specific instance hinged on whether or not the account holder had a “reasonable expectation of privacy” with regards to a particular account at a particular ISP.

See also: Warshak v. United States at EFF’s site.