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Court rules Americans have constitutional right to email privacy

Saturday, September 22, 2007 by: David Gutierrez, staff writer

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(NaturalNews) Earlier this year, the U.S. Court of Appeals for the Sixth Circuit ruled that a reasonable expectation of privacy applies to email stored on the servers of Internet service providers, and that law enforcement must therefore acquire a warrant before reading or searching such emails.

The ruling came in a case where federal agents obtained a defendant's emails from Yahoo! and NuVox Communications without notifying him.

Orrin Kerr, a professor at George Washington University School of Law and a former lawyer with the Computer Crime Division of the Justice Department, called the ruling "a blockbuster decisionů It's a ringing endorsement of strong privacy protection in email."

Under the Stored Communications Act of 1986, strict protections apply to electronic communications in transit or stored on personal computers. However, communications stored by service providers for more than 180 days could be read if related to an open criminal investigation.

The court ruled, however, that the Constitution grants stored email the same strict protections as other kinds of private communication. This means that if law enforcement officials do not want to get a warrant, they either must give the email user a chance to contest the search, or prove that the user's agreement with the service provider made it clear that they have no expectation of privacy.

This is a stricter standard than that applied to other kinds of personal information that may be stored by third parties, such as bank information. This information has very little constitutional protection.

"Email has always been treated as a second-class citizen," said Paul Ohm, a professor at the University of Colorado Law School and a former computer crimes prosecutor. "Police were free to engage in more speculative investigations of people's email messages. But [this decision] means that email has been elevated as something that is much more significant and important."

"This ruling is an important one that provides a legal landmark for protecting the privacy rights of email users," explained Mike Adams, president and CEO of an e-mail newsletter software company that providers e-mail software that sends personalized newsletters to opt-in subscribers.

Currently, the ruling only applies to the Sixth Circuit. But other courts may follow the precedent.

Alternately, the ruling might be overturned on appeal. The Justice Department has not yet decided whether to appeal the decision to the full 11-member Sixth Circuit panel.

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