I got this email today from Prof. Susan Friewald regarding Warshak v. United States, a case seeking to establish constitutional privacy rights in email.  There’s never before been an opinion by an Article III court so holding.  Here’s Susan’s email.
The 6th Circuit issued its decision yesterday in the Warshak case.  It is a great decision that establishes that users retain an expectation of privacy in their emails, even after storage with an ISP who maintains access to those emails — so long as the ISP doesn’t have “complete access to the e-mails in question and … actually relies on and utilizes this access in the normal course of business, sufficient to establish that the user has waived his expectation of privacy with respect to that entity.”  (slip op at 15)

The decision relies on Katz and Berger (and credits the two amicus briefs (ours and the one by EFF/ACLU/CDT) for the telephone analogy).  The court makes a normative judgment that “protecting shared communications through [e-mail] is as important to Fourth Amendment principles today as protecting telephone conversations has been in the past [citing Katz on vital nature of the phone company] (slip op at 13).   It also dramatically limits the scope of the Miller/Smith so-called “third party rule”. – “Where the third party is not expected to access the e-mails in the normal course of business, however, the party maintains a reasonable expectation of privacy, and subpoenaing the entity with mere custody over the documents is insufficient to trump the Fourth Amendment warrant requirement.”  (slip op at 14).  It also affirms the need to particularize the search, and thus rejected the government’s practice of obtaining the entirety of the subject’s email account.   (slip. op. at 15 n.8)

Here is the link to the decision:


The decision is getting a fair amount of press, and people are calling it “landmark” and “blockbuster.”  I’ve spoken to: AP, Wired News, Tech. Law Journal, and ABC news, and will continue to answer reporters’ calls to help them understand the importance of the case and the complex underlying issues.

Here are some links to stories currently online:



Shorter version of the ap story: