back to article Email protected by Fourth Amendment, says appeals court

Police must obtain a warrant before accessing emails stored by internet service providers, a federal appeals court has ruled in a landmark decision that also struck down part of a 1986 law that allows warrantless interception of some digital data. The unanimous decision (PDF), from a three-judge panel of the Sixth Circuit Court …


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  1. Lars Silver badge


    “Given the fundamental similarities between email and traditional forms of communication, it would defy common sense to afford emails lesser Fourth Amendment protection,” the ruling stated. “Email is the technological scion of tangible mail, and it plays an indispensable part in the Information Age.”

    And positive. have the Americans regained the ability to read again.

    1. Anonymous Coward
      Anonymous Coward


      "have the Americans regained the ability to read again"

      You wouldn't say this about any other group of people, would you?

      Also, if you're going to insult other people's ability to read, you may want to look at your punctuation and sentance structure first.

      1. Anonymous Coward


        Of course, you may want to look at the spelling in your sentences first.

      2. Alan Newbury

        @AC @Lars


  2. The Cube
    Thumb Up

    One area where the US is definitely ahead of the UK

    Over here the Police and about half a million others in local government and private companies can go snooping through your data and email without ever needing to explain to a judge why that is necessary. This was enshrined in the deliberately mis-named "Regulation of Investigatory Powers Act" which was, of course, a complete deregulation of official and unofficial snooping on the population.

    Over here the Police, government and jumped up wheel clampers can go on any fishing expedition they like regarding a private individual. At least in the US there is some rational understanding of the need to regulate the powers of state. I am sure this judge will get replaced with one who will vote more in line with the President soon enough though.

    1. Anonymous Coward
      Anonymous Coward


      Though I agree with your post, I don't think RIPA is really a misnomer. It does exactly what it says. The sneaky thing, as with much of the regulatory legislation passed in recent times, is that it is put forward as a means of controlling abusive behaviour, but in fact it re-defines the behaviour as OK in certain circumstances. And then goes on to extend that privilege to any gov organisation that wants it (it seems).

      The yanks seem to have been able to define rights against official abuse in such a way that it actually works - so good for them.

    2. Chris Parsons

      I'm staggered

      That even one person could downvote this post. What our (UK) government is planning to do is fundamentally wrong, and we're going to let them get away with it.

      1. Anonymous John

        It's a bit of a mish-mash.

        Once, before the act, I was reading a rather odd handwritten letter from someone claiming to be an accountant. So I went out in my lunch hour and walked past his "business address" to find it was a local authority day centre for the elderly.

        Technically that was an investigation that I would have needed permission for post RIPA.

        1. Anonymous Coward
          Thumb Down

          No you would not

          title says it all

  3. Eddy Ito Silver badge
    Thumb Up

    Hat trick!

    Well isn't that just a Merry Christmas to all. How did they know? It's just what I wanted.

  4. Darryl
    Thumb Up


    I don't find myself giving a thumbs-up to governmental/judicial bodies very often, but well done!

  5. Anonymous Coward


    At least we get something right every once in a while and it's not all a downward spiral towards tyranny.

  6. skeptical i
    Thumb Up

    Even penis-pill-pushing scum are good for something, I suppose.

    If only their hiring of lawyers to push freedoms of speech and against unconstitutional seizure issues that benefit the rest of us.

  7. Yet Another Anonymous coward Silver badge

    @One area where the US is definitely ahead of the UK

    Of course certain 3 letter agencies will still be able to do it secretly, or in the name of national security, or will just 'ask nicely' and then forgive the ISPs later, or will just get a warrant that covers such a broad range of people that it's pointless

  8. Anonymous Coward
    Big Brother

    Unless it's Gmail

    ... In which case Google's T&C's allow them to sell it to them (provided that they are the highest bidder),

  9. Charles Manning

    Amendments? So what?

    It is easy enough to raise another amendment that negates the forth. After all, the 18th introduced the prohibition and the 21th repealed it.

    The First Amendment allows freedom of speech, but allows this to be controlled (where, when, how) and may be limited to so-called "free speech areas".

    Easy enough to either poke holes in the 4th (eg. emails are no longer private once transmitted from the user's computer) or just add another amendment.

    1. Destroy All Monsters Silver badge
      Big Brother

      That's always the case.

      But then the festering authoritarian stuff will be discussed in the open at least.

    2. Tom 13

      Ah the universal failure of understanding from liberals

      The First amendment does not "Allow" anything, it is a prohibition on government interfere with a natural right of man with which he was endowed by his Creator as more famously set forth in another document before the current occupant of the White House started editing it in speeches. It also does not allow free speech to be controlled anywhere, that is a distortion caused by activist liberal judges intent on perfecting the morality of man by substituting their own prejudices for established law. In this case for specifically protecting certain people from hearing things which might make them uncomfortable.

      Now as to the ruling itself, I think it is ultimately defensible, though not quite so obviously as some people think it ought to be. The key element here is that in general email communications are not encrypted so it is more akin to sending a postcard than a letter. Anyone involved in the handling of the email (postcard) can read what is written on it. If an officer of the law happens to see a postcard while it is being handled in the normal process of delivery, it is not subject to 4th amendment protection because there is no reasonable expectation of privacy. The catch is that law enforcement has essentially demanded to search the post office to see the post cards, which itself does require a search warrant.

    3. PT

      Re: Amendments? So what?

      It is far from "easy" to add amendments to the US Constitution. You should research it a bit.

  10. Anton Ivanov
    Thumb Up

    Sudden outbreak of common sense...

    It is probably the blood still to high in my coffee subsystem. What time is it? Aa... before the 4th espresso, so I am probably having hallucinations. Such outbreaks of common sense have no place in the modern world.

  11. shmirsh

    e-discovery impact?

    Does anyone know what the effect of this decision will be on e-discovery rules and the ability of organisations to perform ESI related investigations in general?

    1. Ian Michael Gumby Silver badge

      @shmirsh None

      This is a decision that deals with criminal prosecution and what the government can and can't do.

      In a civil case, there is this thing called Discovery that lets one side of the case demand evidence from another. (Within certain limits of the law.)

      The interesting thing is that if you use Google/Hotmail/etc... the company has rights to access your email yet the government doesn't. Which is more intrusive?

      1. shmirsh
        Thumb Up

        thanks Ian

        it wasn't clear to me whether the 4th amendment protection also applied in civil cases.

    2. Anonymous Coward

      My 2 cents impact. There is now a prerequisite for a warrant before law enforcement can legally request and obtain e-mail, but the gap that this addresses (an interpretation of an arcane law that implied a loophole where a warrant was not necessary for data older than 180 days IIRC) is not commonly (ever) used in what would normally be described as an e-discovery situation AFAIK. Legal hold and discovery orders issued by the courts should not be impacted at all by this ruling.

      That said, it has been an interesting week in e-mail. I ran across a story on Ars about an employee who was convicted for wiretapping for sneaking a forward/copy rule into his boss' inbox so he could read all her mail. To me, that one is much more concerning - if an employee spying on another employee's mail is considered a criminal matter then what happens to investigations that are not backed up by a court order?

  12. mhenriday
    Thumb Up

    An excellent decision -

    my organ grew a couple of centimetres while reading the article ! However, it may well shrink again if and when (more likely the latter) the matter comes before the US Supreme Court, which in its present gestalt has shown itself to be no friend of privacy or free speech (unless we are referring to the so-called right of corporations to finance political campaigns - otherwise known as buying politicians - which the Court holds to be unlimited)....


  13. Cunningly Linguistic

    It won't be for long

    The rate the US is devolving into a fascist state in 5 years there will be no Constitutional rights. They'll all be given up in the name of fighting the scourges of terrorism.

    The poor saps don't realise that they've already lost the war on terrorism.

    1. Anonymous Coward
      Black Helicopters

      This is sadly true...

      ... but there's still time to reverse the trend.

      Worst case? We see another civil war, which I hope that it never comes to.

      anon, well...

  14. Anonymous Coward

    Can I be the first to say...

    > The ruling came in the criminal case of one Steven Warshak, a penis-enhancement marketer who was convicted of multiple fraud charges. In the course of the investigation, prosecutors accessed thousands of Warshak's emails without a warrant.

    Presumably "accessed thousands of Warshak's emails without a warrant" simply means that they turned off their spam filter for 10 minutes?

  15. Anonymous Coward
    Thumb Up

    It's about time.

    Thank you judge>

  16. Anonymous Coward
    Anonymous Coward

    mixed feelings

    I absolutely applaud the ruling itself. But I wish it happened in a different case, one that didn't involve spammers.

  17. Tempest

    Given the Patriot Act allows access to any computer, is there really any gain?

    The Patriot Act allows government agencies warrant-free access to any computer in American territories, including e-mail servers.

    What benefit, other than in court actions, accrues from this legal decision?

    Little I suspect.

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