The privacy of private words
Posted by metaphorical on 27 December 2006
When you pour out your heart to your best friend in e-mail, do you have a “reasonable expectation of privacy”? Does it make any difference whether you use Gmail or Outlook?
The ACLU and the EFF say you do and it doesn’t. But for 20 years, the government has been distinguishing one class of e-mail as “stored communications” that it can look at without a search warrant. These are messages stored not on your local computer, as they would be with Outlook or Eudora, but rather kept at one’s Internet service provider, as they are with the web-based services like Gmail, Hotmail, and Yahoo Mail.
Finally, someone has brought a case to the Southern District of Ohio. Warshak vs. United States argues that the Fourth Amendment’s protection against unreasonable searches and seizures requires that the government get a search warrant before reading e-mail, regardless of where it is stored.
Steven Warshak is no saint, apparently. According to an article in the Minneapolis Star Tribune, he’s “a seller of ‘natural male enhancement’ products who was indicted for mail fraud and money laundering after federal investigators sifted through thousands of his e-mails.” Whatever. If so, the government should have no problem getting a search warrant.
By the way, how about a diary stored online? Is that different from a private blog with only one authorized reader? We bloggers in particular need the Fourth Amendment to be as broad as possible.
Here’s the whole Fourth Amendment.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
It seems to protect all our papers. In a digital age, it needs to protect all our digital papers. The government’s distinctions between them is, in a word, Orwellian.
The EFF/ACLU amicus brief in Warshak vs. United States is here:
An EFF press release about the case is here:
The full text of the U.S. code instantiating the Stored Communications Act is here: