News Release ~ 12/15/2010 B

Fourth Amendment Protects E-Mail From Warrantless Government Surveillance, Federal Court Rules

Washington, DC (December 15, 2010) – The National Association of Criminal Defense Lawyers praised the federal appeals court decision protecting email privacy. For the first time, a federal court has ruled that law enforcement must obtain a search warrant before it can search and seize a subscriber’s email that is stored on the computers of his Internet service provider (ISP). Americans expect and deserve protection from government agents who would snoop into their private communications without probable cause and a court order.

In United States v. Warshak, the Sixth Circuit U.S. Court of Appeals held that government agents violated the defendant’s Fourth Amendment rights when they seized his stored email without a warrant, pursuant to an outdated law, the Stored Communications Act of 1986 (SCA). “An Internet subscriber enjoys a reasonable expectation of privacy in the contents of emails that are stored with, or sent or received through, a commercial ISP,” the court said. “Moreover, to the extent that the SCA purports to permit the government to obtain such emails warrantlessly, the SCA is unconstitutional.”

More personal and business communications go by email than letter or fax today. The Stored Communications Act was written almost a quarter-century ago when electronic communications were a novelty, and very few people – including Congress itself – were familiar with electronic mail or even voicemail. Citizens today would find the archaic assumption that if an email stayed on a computer server for more than six month it was essentially “abandoned” as absurd.

NACDL President Jim E. Lavine and Fourth Amendment expert and Past President John Wesley Hall issued separate statements commending the Court of Appeals and the defense team for bringing electronic privacy into the 21st Century.

“The court ruled that persons have a right to expect the same kind of privacy in their email as they do in their letters and their post office box,” Lavine said. “The police can’t storm the post office and seize our mail, and they can’t intercept our phone calls or voicemail messages without a warrant, and this opinion recognizes that the same Fourth Amendment protection applies to email.”

Lavine also praised the defense team, NACDL Past President Martin Pinales, of Cincinnati, and former NACDL Board Member Martin Weinberg of Boston. “Marty Pinales and Marty Weinberg are like a Fourth Amendment dream team. They understand that the Constitution and the Bill of Rights still reign as the supreme law of the land.” Lavine also thanked the Electronic Frontier Foundation and their counsel Kevin Bankston, of San Francisco for their invaluable friend-of-the-court assistance.

Hall added, “The Fourth Amendment protects our papers and effects, whether physical or electronic, no matter where we store them or for how long. By analogy, as long as I keep paying the rent on my storage locker or my safety deposit box, I expect the police to get a warrant or stay out of them.”

The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's approximately 9,000 direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal justice system.

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