19 June 2007, 16:25

Email privacy covered by Fourth Amendment

A federal appeals court in Ohio USA has decided that the privacy of emails is covered under the Fourth Amendment to the Constitution, that protects the "...right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures".

Up to now, the US Government has made extensive use of the 1986 federal Stored Communications Act (SCA) to gain access to suspects' emails, often from third parties, without obtaining warrants. The assumption appears to have been that once an email has been opened, the sender no longer has an expectation of privacy. However, this appeals court has now ruled that such access contravenes the Fourth Amendment, which is paramount.

Attorneys for the Government argued that the routine scanning of emails for viruses and child pornography is a comparable act that does not violate, and indeed diminishes, the expectation of personal privacy. It now seems they could be mistaken. However, the appeals court took an interesting view, that "... the reasonable expectation of privacy of an e-mail user goes to the content of the e-mail message. The fact that a computer scans millions of e-mails for signs of pornography or a virus does not invade an individual’s content-based privacy interest ... (but is) analogous to the post office screening packages for evidence of drugs or explosives, which does not expose the content of written documents enclosed in the packages". A potential, but probably unintended, side-effect of this decision might turn out to be that the body of an email, but not an attachment, constitutes content protected by the Fourth Amendment.

The relevant concept is the "expectation of privacy" rather than privacy itself as an absolute fact, so emails can still be examined, given due process. However, regardless of the finer points of detail, the main outcome of this ruling is that Government agencies will from now on require a warrant before doing so. Considering the take-up of web mail services (many of the most popular of which are hosted in the US), this is an extremely important decision with potential international repercussions, which we await with interest.