E-mails protected by fourth amendment.

• Position: E-MAIL

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E-mail users can reasonably expect a certain amount of privacy under the Fourth Amendment, a court has determined.

The U.S. Court of Appeals for the Sixth Circuit decided in United States v. Warshak that a "subscriber enjoys a reasonable expectation of privacy in the content of e-mails" stored, sent, or received through a commercial Internet service provider (ISP), and that the government must get a search warrant before it can compel an ISP to turn over the contents of a subscriber's e-mails.

In 2008, a Southern District of Ohio jury convicted defendants Steven Warshak, Harriet Warshak, and TCI Media Inc. of various crimes relating to defrauding customers of Berkeley Premium Nutraceuticals Inc. Before trial, the judge had denied Warshak's motion to exclude thousands of e-mails the government had obtained from his ISP. The defendants appealed their convictions, arguing the government's warrantless seizure of Warshak's private e-mails violated the Fourth Amendment's protection against unreasonable searches and seizures.

Warshak's e-mails had included "often sensitive and sometimes damning" content, but the Sixth Circuit concluded they deserved Fourth Amendment protection. To come to this conclusion, the court focused on two principles:

1) "The very fact that information is being passed through a communications network is a paramount Fourth Amendment consideration."

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