US Appeals Court Upholds Right To Email Privacy

We've been following this for some time, as its impact to the industry is tremendous and far-reaching.  In the United States of America the citizens have a constitutional right to protection from unlawful search and seizure of their property.  This means that in most situations law enforcement must go to a judge, present their arguments for searching property, receive a warrant outlining what they are searching for and allowed to seize, and then go and conduct the search.  There are exceptions to this relating to probable cause, but that's not the point of this discussion.  The Stored Communications Act and the Electronic Communications Privacy Act sought to clarify Fourth Amendment rights as they applied to digital information.

Some time ago federal agents ordered a man's ISP to store all email that he received and later retrieved that email under the SCA.  An appeal was filed, stating that the SCA applies to email already in storage and not to email that is received in the future.  The Sixth Circuit Court of Appeals has upheld that the Justice Department violated this man's Fourth Amendment rights by forcing the ISP to hold future email without a warrant.  This is great news, but rather than saying that the SCA or the ECPA were wrong, they've challenged the procedural way in which the agents went about it.  They should have used a warrant, instead of a subpoena.

The SCA and ECPA are both of concern to us as a provider of Internet services.  We feel that your data is your data and that you have a right to privacy and protection of that data at all times.  The US feels that if you entrust your data to a third party, you give up the reasonable expectation of privacy for that data.  This is going about it the wrong way.  If you entrust your money to a bank, the bank is obligated to protect your money, not to give it to anyone who comes along and asks for it.  Even if the analogy breaks down at the fact that money can't be copied the way data can, it works if you imagine someone coming to the bank every day to ask for information about your bank accounts, including the dates of your last deposits, who you wrote checks to, and what your current balances are.

It's reassuring to see a glimpse of rationality from within the US Courts.  If only the system was designed so that laws had to go through a judicial challenge before being passed and enforced, then we wouldn't have the multi-year grace period during which the government stomps all over the rights of the people before someone tells them to knock it off.