The Electronic Frontier Foundation, American Civil Liberties Union, the ACLU of Ohio, and the Center for Democracy and Technology have filed an amicus brief in Warshak v. USA seeking to establish that users of online e-mail services like Hotmail, Yahoo Mail, and Gmail have a "reasonable expectation of privacy" for their stored communications.
"E-mail users clearly expect that their in-boxes are private, but the government argues the Fourth Amendment doesn't protect e-mails at all when they are stored with an ISP or a Web mail provider like Hotmail or Gmail," said EFF staff attorney Kevin Bankston in a statement. "EFF disagrees. We think that the Fourth Amendment applies online just as strongly as it does offline, and that your e-mail should be as safe against government intrusion as your phone calls, postal mail, or the private papers you keep in your home."
In March 2005, the U.S. government was investigating allegations of mail and wire fraud, money laundering, and other federal offenses arising from the operations of Steven Warshak's company Berkeley Premium Nutraceuticals, a maker of herbal erection pills.
In May of that year, the government obtained an order from an Ohio judge directing NuVox Communications, an ISP, to turn over electronic communications belonging to Warshak and his associates. In September of that year, the government used a similar order to obtain Warshak's e-mail from Yahoo.
In May 2006, nine months after it was granted access to Warshak's communications, the government notified Warshak of its actions. In June, Warshak sued.
The Ohio judge's order was issued pursuant to the Stored Communications Act, which allows the government to obtain stored communications from ISPs without notice or with delayed notice where knowledge of the government's actions would jeopardize a lawful investigation.
Unlike the Fourth Amendment, "the SCA doesn't require probable cause," explains Bankston. "The government only has to make a case that the information it is seeking is relevant to an investigation. It doesn't have to establish that there's probable cause for a crime."
"If in the end there's no Fourth Amendment protection for e-mail, then your e-mail could be an open book to the government if they want to access it, unless there are other statues that protect it," says Bankston. "The reason why this is so important is people use e-mail for private communications just like telephone calls and mail. There's no reason those same protections should not apply to e-mail."