E-mail protection arrives, search warrants now required

A three-judge panel of the Sixth Circuit of the United States Courts ruled today that e-mail is protected, and law enforcement now requires a warrant before searching e-mail archived at ISPs.

Map of the Sixth Circuit

The Supreme Court rarely overturns that heartland circuit, just as its three-judge panels are rarely overruled by the entire appellate panel of the Circuit. Civil liberties confirmed by this heartland court are not easily overturned, so this decision is solid and unlikely to face challenge.

The Electronic Frontier Foundation, the ACLU, the Center for Democracy and Technology, and a coalition of Internet law professors spoke on the behalf of civil rights and argued that e-mail is a vital communication tool. Users' e-privacy must bear constitutional protection to assure Americans free speech and un-stifled debate.

This overturns the Reagan-era Stored Communications Act (SCA) provisions, which allowed warrantless seizure of e-mail without requiring investigation subjects be aware of the search (and so having no chance to protest). So, ISP operators have one burden lifted, the SCA requirement not to tell their customers of e-mail search. One EFF legal expert termed the no-notice warrants "...absolutely routine. It is and has been the Department of Justice and presumably local law enforcement's standard practice for obtaining e-mails over the last 20 years."

Will the administration's Justice Department use its shrinking credibility in further appeal in quest for the right to open your e-mail without a warrant and without notice, especially when facing e-mail woes of its own? Should the Congress restore no-notice, no-warrant search of your inbox without judicial review? Join the discussion.