Internet Law

Sex Supplements Case Protects E-Mail


A federal appeals court has ruled the Fourth Amendment protects e-mail stored with a commercial Internet service provider.

Individuals have a reasonable expectation of privacy for such e-mail, the 6th U.S. Circuit Court of Appeals found yesterday.

The Cincinnati-based court upheld an injunction generally barring the federal government from obtaining e-mail of residents in the Southern District of Ohio without a warrant or notice to the account holder.

“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 the past,” the court said.

The ruling is Warshak v. United States, No. 06-4092 (PDF).

The plaintiff in the case, Steven Warshak, was under investigation for mail and wire fraud when the government obtained a sealed order requiring two ISPs to turn over his e-mail.

The magistrate cited a section of the Stored Communications Act that authorizes the seizure of e-mails from ISPs without a warrant, on a showing that there are reasonable grounds to believe the contents are material to an ongoing criminal investigation. The statute permits delayed notice to the account holder.

The government notified Warshak the e-mail had been seized more than a year later, when the magistrate lifted the seal. Warshak filed suit, contending the seizure of his e-mail violated the Fourth Amendment.

Warshak’s lawyer, Martin Weinberg of Boston, told the the Cincinnati Enquirer the ruling is “the first appellate decision to address the intersection of the Fourth Amendment with e-mail privacy and electronic communications.”

Warshak was indicted in September on charges he defrauded people through the sale of herbal supplements said to improved sexual performance, the Enquirer reports.

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