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Warshak v. USA

Tuesday, June 26, 2007


A three-judge panel of the 6th U.S. Circuit Court of Appeals has held unanimously that the Fourth Amendment applies to e-mail. When it comes to government searches, e-mail is analogous to a sealed envelope. As a result of the case, Warshak v. USA, certain laws allowing warrantless access to e-mail, such as the Stored Communications Act and various provisions of the USA PATRIOT Act, are unconstitutional, at least within the jurisdiction of the 6th Circuit Court (Ohio, Michigan, Kentucky, and Tennessee). The court pointedly recognized the evolving role of e-mail: "It goes without saying that like the telephone earlier in our history, e-mail is an ever-increasing mode of private communication, and protecting shared communications through this medium is as important to Fourth Amendment principles today as protecting telephone conversations has been in past."

While civil liberties groups and others applauded the decision and termed it "landmark" and a "blockbuster," noted privacy expert Orin Kerr, professor of Law at George Washington University, said the case was "obviously wrongly decided" and called it "a dramatic break with decades of Fourth Amendment practice that the Supreme Court long ago foreclosed." The Justice Department may appeal the decision to the full 6th Circuit Court or to the Supreme Court.

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