Email Privacy Rights, Electronic Search and Seizure Before Court

CDT recently signed on to an amicus brief being spearheaded by Electronic Frontier Foundation in the second round of United States v. Warshak, a case that could have major ramifications for email privacy rights and electronic search and seizure processes. The court is deciding whether the government can evade probable cause standards through the use of mandatory data preservation requests.

The Electronic Communications Privacy Act permits the government to require an ISP to "preserve" communications in its possession pending issuance of a court order or other legal process. To require preservation, the government has to prove nothing and it need not involve a court. It just has to ask the provider to hold onto the communications.

But, under ECPA, if the government wants access to emails not yet in the possession of a provider – communications that haven't yet occurred – it has to get a court order under the Wiretap Act and has to prove it has probable cause of crime, and then some. In this case, the government got a "back-door wiretap" by asking the ISP to "preserve" communications it hadn't yet received. The government followed up that request much later with a subpoena, then a court order issued under a lesser standard, for the email it sought. In other words, it circumvented the requirement that it prove to a judge it has probable cause.

The lower court ruled that this is OK. If the Sixth Circuit court agrees, it would give the government a road map for collecting up email without having to prove strong evidence of criminal activity to a judge.

Internet users can clearly expect their email to be private, but the government argues that emails stored on a webmail provider or an ISP are not protected under the Fourth Amendment. CDT has long advocated for an update in the laws governing government access to communications and if the court does not make it clear that back door wiretaps are not permitted, then Congress will need to step in.