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Feds Contend Email Privacy Ends At The ISP
David Utter
Staff Writer
2007-11-05
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The Sixth Circuit will hear an appeal by the US Government that seeks to treat email as being outside the usual Fourth Amendment protections against unreasonable search.
Send an email and any reasonable expectation of privacy you have about that message departs along with it. The Bush Administration believes that sending an email through an ISP that monitors the message automatically means the sender forfeits Fourth Amendment protections for it.
Mark Rasch at SecurityFocus noted the Sixth Circuit will hear an appeal by the federal government in the case of Warshak v United States. In an earlier case as part of an investigation of Warshak, investigators obtained email from an ISP, and did not notify Warshak until more than a year later of their subpoena.
A court document from the Sixth Circuit noted the Justice Department erred in failing to notify Warshak:
The government has conceded that it violated the statute by waiting for over a year without providing notice of the e-mail seizures to Warshak or seeking extensions of the delayed notification period, and it appears to have violated the magistrate's decision for the same reason.
Whether or not the Constitutionality test passes the full Sixth Circuity seems to depend on the interpretation of privacy expectations. The US Government believes they end whenever an email passes through an ISP with a stated policy of monitoring emails at its discretion.
Rasch noted an earlier decision where the Government cited antivirus scanning and anti-spam filtering as automated processes that examine email contents, thus eliminating an expectation of privacy.
The reasonableness of such actions and the privacy people expect look like the central issue. The Feds want to be able to go to the ISP and obtain email as they see fit, without a subpoena, without providing notification to the target and without the target being able to complain of an unreasonable search.
Law enforcement enjoys the ability to obtain a subpoena as necessary, to perform investigations as needed. They can require an ISP to retain evidence; they don't need to have the Fourth Amendment rendered irrelevant for electronic communications.
"This appears to be more than a mere argument in support of the constitutionality of a Congressional e-mail privacy and access scheme. It represents what may be the fundamental governmental position on Constitutional e-mail and electronic privacy -- that there isn't any," wrote Rasch.
About the Author:
David Utter is a business and technology writer for SecurityProNews and WebProNews.
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