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WARSHAK V. UNITED STATES: FOURTH AMENDMENT RISK ANALYSIS IN THE 21ST CENTURY

Gustavo Enrique Schneider
Jurimetrics
Vol. 48, No. 4 (SUMMER 2008), pp. 357-377
Published by: American Bar Association
Stable URL: http://www.jstor.org/stable/25767405
Page Count: 21
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WARSHAK V. UNITED STATES: FOURTH AMENDMENT RISK ANALYSIS IN THE 21ST CENTURY
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Abstract

In Warshak v. United States, the Sixth Circuit Court of Appeals upheld a district court injunction prohibiting the government from acting upon a magistrate's order authorizing the seizure of e-mails stored by an Internet Service Provider (ISP) without prior notice to the e-mail account holder. In its analysis, the court relied on analogies between e-mails and postal letters in holding that portions of the Stored Communications Act (SCA) violated an e-mail account holder's reasonable expectation of privacy by allowing the government to gain access to the contents of his e-mail messages on less than probable cause and without due process of law. The court's decision suggests that the degree to which an ISP monitors an account holder's e-mails during the daily course of business is dispositive on the issue of whether the subscriber has a reasonable expectation of privacy and is thus entitled to appropriate due process. A standard that allows ISPs to determine the subscriber's expectation of privacy may be problematic because, in theory, an ISP is free to monitor everything a subscriber does, or conversely, to monitor nothing a subscriber does. Neither extreme is palatable. The later approach would clearly frustrate the goals of the SCA, while the former would eliminate Internet privacy. Given the importance of developing a workable Fourth Amendment e-mail communications standard that balances governmental and private interests, the Sixth Circuit vacated its decision and granted rehearing en banc. Upon rehearing, the Sixth Circuit should set a bright line rule to govern e-mail privacy that is deferential to the terms of service contract between the subscriber and the ISP. To defeat a presumption of privacy, the court should require specific language to that effect in the contract between the parties; in its absence the user's communications should be presumed to be private for purposes of the Fourth Amendment.

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