Susan Freiwald, one of the law professors whose articles were cited in the recent Warshak decision, has this commentary and analysis on Concurring Opinions:
Finally! A Federal Appellate Court has brought the Fourth Amendment to stored email! On December 14th, in United States v. Warshak, the 6th Circuit held that when government agents compel an Internet Service Provider (ISP) to disclose its user’s stored emails, they invade the user’s reasonable expectation of privacy, which constitutes a search under the Fourth Amendment and requires a warrant or an applicable exception.
In a 2007 decision, a panel of the 6th Circuit found a reasonable expectation of privacy (REP) in Warshak’s stored emails when he sought an injunction, but the 6th Circuit, en banc, vacated that decision the next year on ripeness grounds. The case decided three days ago concerned Warshak’s appeal of his criminal conviction of an array of charges related to fraudulent business practices. The trial was long and involved (and much of the decision concerns other issues). As part of the investigation, prosecutors seized 27,000 of Warshak’s private emails, ex parte, and without first getting a warrant. Along with Patricia Bellia, of Notre Dame, I wrote an amicus brief for law professors prior to the 2007 decision, and have written law review articles (with Tricia) on the topic since. Below, I explain the court’s constitutional analysis, discuss why this discussion was so long in coming and share some thoughts about the future.
Read more of her analysis on Concurring Opinions.