Legal Tech: Email is protected from unreasonable search and seizure

By Peter LaSorsa Electronic discovery has been the hot litigation issue for a few years now. Probably at the forefront of electronic discovery is email. I would hasten to say everyone in the business world utilizes email, except those still clinging to their Luddite ways. There was a recent case that involves email in the United States Court of Appeals for the Sixth Circuit that is worthy of mention. In United States v. Warshak[1] the Court held that email might be private and constitutionally privileged. The Court ruled the portion of the Stored Communications Act that allowed the government to access Internet Service Providers “(ISP”) stored emails older than 180 days with just a subpoena or court order unconstitutional. I believe this is the first such statement by a court on this level. In short the Court said that email stored with commercial ISP’s have the same Fourth Amendment expectations to privacy and actual protections of privacy as phone calls and letters. In this case, the government issued a subpoena to the ISP requesting and receiving 27,000 emails from Steven Warshak. Those emails were utilized to help secure at 25-year prison sentence. The problem was the subpoena allowed the government to secretly get access to the emails without the knowledge of Warshak or without a search warrant. In affect, the government by-passed the constitutional mechanisms of obtaining a search warrant and therefore, the constitutional protections afforded Mr. Warshak were violated. Although this case is from another Circuit, it may be sited as persuasive and if the United States Court of Appeals for the Seventh Circuit were to rule in an opposite direction, this issue would seem ripe for an appeal to the United States Supreme Court. Because just about every civil case involves technology and email, this is a case worth reading. Even criminal defense attorneys would be advised to read this case. [1] http://www.ca6.uscourts.gov/opinions.pdf/07a0225p-06.pdf last accessed April 1, 2011 Peter LaSorsa can be reached at lasorsalaw.com. He also publishes a blog at www.illinoissexualharassmentattorneyblog.com