Score one for the Constitution! The US 6th Circuit just announced a decision upholding the requirement that police obtain a warrant before compelling an ISP to turn over your emails.
The background is that Steven Warshak was accused and eventually convicted of attempting to defraud the customers of Berkeley Premium Nutraceuticals (the distributor of Enzyte, an herbal supplement with some really goofy but apparently amazingly successful late night ads). The government agents in this case believed that they did not need a warrant because of some ambiguous provisions of the Stored Communications Act. (SCA was written in 1986 and had the unfortunate effect of codifying technology as it existed then. SCA has not held up well to the test of time.)
A number of privacy groups including EFF weighed in on the topic, successfully arguing that email users have a Fourth Amendment-protected expectation of privacy in the email they store with their email providers just like they do with traditional forms of communication like postal mail and telephone calls.
A warrant is easy to get and it’s unfortunate that the police in this case didn’t take the few extra minutes to document their probable cause. But the requirement for a warrant is an important check and balance on prosecution powers. The 6th Circuit did the right thing in finding that the Fourth Amendment applies to email, too. (They also did the right thing by narrowly ruling that this decision only overturns part of the matter. Warshak used some pretty sleazy practices and deserved to be put out of business.)
Next steps: It’s time for Congress to update the SCA.