Search Warrants Required for Email (Maybe)

By Kristopher A. Nelson in

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Freedom to Tinker notes:

The Sixth Circuit Court of Appeals ruled yesterday, in Warshak v. U.S., that people have a reasonable expectation of privacy in their email, so that the government needs a search warrant or similar process to access it. The Court’s decision was swayed by amicus briefs submitted by EFF and a group of law professors.

Orin Kerr writes:

Today’s Fourth Amendment decision in Warshak v. United States is astonishing on a number of fronts. If it stands on the books, it will revolutionize the way that Fourth Amendment challenges are brought; it will constitutionalize an area of law long thought to be statutory, invalidating some statutes along the way; and it will create the rather surprising result that Fourth Amendment protections are actually significantly stronger online than in the physical world.

See also: Katz and Berger and a “Reasonable Expectation of Privacy” and Randy Picker’s Regulating the Cloud: Warshak v. United States

Update: an en banc 6th Circuit dismissed the case on procedural grounds, leaving the law unclear.