US court says emails can only be obtained with a warrant

The Sixth Circuit Court of Appeals has said that going direct to ISPs and demanding emails without a warrant is a breach of citizens' rights not to be subject to unreasonable searches and seizures, a right guaranteed by the fourth amendment to the US Constitution.

"If we accept that an email is analogous to a letter or a phone call, it is manifest that agents of the government cannot compel a commercial ISP to turn over the contents of an email without triggering the Fourth Amendment," said the ruling (98-page / 317KB PDF).

"The ISP is the functional equivalent of a post office or a telephone company," said the ruling. "The police may not storm the post office and intercept a letter, and they are likewise forbidden from using the phone system to make a clandestine recording of a telephone call – unless they get a warrant, that is."

"It only stands to reason that, if government agents compel an ISP to surrender the contents of a subscriber's emails, those agents have thereby conducted a Fourth Amendment search, which necessitates compliance with the warrant requirement absent some exception," it said.

The Electronic Frontier Foundation (EFF), which made submissions to the Court arguing that warrants were needed, said that it hoped the ruling would change US law.

"Today's decision is the only federal appellate decision currently on the books that squarely rules on this critically important privacy issue, an issue made all the more important by the fact that current federal law – in particular, the Stored Communications Act – allows the government to secretly obtain emails without a warrant in many situations," said an EFF statement.

"We hope that this ruling will spur Congress to update that law as EFF and its partners in the Digital Due Process coalition have urged, so that when the government secretly demands someone's email without probable cause, the email provider can confidently say: 'come back with a warrant'," it said.