Internet Law

6th Circuit Expands E-Mail Protections in Male Enhancement Appeal

A federal appeals court has struck down part of a law that allows the government to obtain e-mails from Internet service providers without a probable cause warrant.

The Cincinnati-based 6th U.S. Circuit Court of Appeals ruled for the maker of herbal product called Enzyte that was marketed for male enhancement. The court ruled the government violated the Fourth Amendment rights of company founder Steven Warshak by compelling his ISP to turn over about 27,000 of his e-mails without first obtaining a warrant. Wired’s Threat Level blog and the Electronic Frontier Foundation have stories.

The ruling (PDF posted by EFF) struck down part of the Stored Communications Act, a 1986 law that allows the government to secretly obtain e-mails through an administrative subpoena if they have been stored for 180 days or more with ISPs. “The Fourth Amendment must keep pace with the inexorable march of technological progress, or its guarantees will wither and perish,” the court said.

“The police may not storm the post office and intercept a letter, and they are likewise forbidden from using the phone system to make a clandestine recording of a telephone call—unless they get a warrant, that is,” the court said. “It only stands to reason that, if government agents compel an ISP to surrender the contents of a subscriber’s emails, those agents have thereby conducted a Fourth Amendment search, which necessitates compliance with the warrant requirement.”

The court refused to bar the e-mails as evidence under the exclusionary rule, however, because government agents obtained them in good faith.

The ruling is the first by a federal appeals court that “squarely rules on this critically important privacy issue,” according to the Electronic Frontier Foundation.

Hat tip to How Appealing.

We welcome your comments, but please adhere to our comment policy and the ABA Code of Conduct.

Commenting is not available in this channel entry.