Monday links
Big opinion [Warshak v. U.S.] from the Sixth Circuit on the Stored Communications Act today. (My perplexed cyberlaw students will be very relieved to read this.) We expect as much privacy in our email as in our phone calls. So government agents will need to get a warrant based on probable cause before obtaining stored email from service providers. EFF press release is here.
Many congratulations to superlative cyberprofs Tricia Bellia and Susan Freiwald for their key amicus brief:
Because government agents intrude upon users’ reasonable expectation of privacy when they acquire private e-mails, they conduct a search under the Fourth Amendment. That expectation of privacy obtains whether the e-mails acquired are stored or in transit, and whether or not their recipients have accessed them. Nothing in the private contracts between users and their internet service providers affects the application of those constitutional protections. . . .
Email messages, unlike transactions disclosed to a bank, are the kinds of things that we expect are and will remain private. Katz is still alive, and the mere involvement of an intermediary doesn't destroy this expectation of privacy — one that the Constitution protects. As Bellia and Freiwald said, “A service provider’s policy of complying with legal process . . . cannot defeat a user’s reasonable expectation of privacy. E-mail users must be entitled to presume that agents will present appropriate legal process, not that they will present any legal process.”
The Sixth Circuit is tackling a question that is central to law enforcement, and we can expect that this decision will be challenged in a hundred ways. We depend so much on intermediaries, and the Sixth Circuit decision stands firmly on ground the government won't like:
Like telephone conversations, simply because the phone company or the ISP could access the content of e-mails and phone calls, the privacy expectation in the content of either is not diminished, because there is a societal expectation that the ISP or the phone company will not do so as a matter of course.
In an era in which telephone companies routinely cooperate with law enforcement without asking for legal process, in which law enforcement routinely claims that every request for information it makes has something to do with terrorism or espionage, and in which my students routinely say they have no reasonable expectation of privacy (in anything), it's a fine moment. The courts are making clear that they still have a role to play.
The Fourth Amendment can't be overwritten by either broad language in a cooperative provider's terms of service or by the hopeful interpretation of a statute — here, the Stored Communications Act — by the Executive Branch.