Unwarranted email-snooping ruled unconstitutional in 2010

 
I was poking around in some 4th Amendment case law online and came across a relatively recent (2010) ruling (.pdf) by the United States Court of Appeals for the Sixth Circuit. It's a solidly pro-civil liberties ruling that seems tailor-made for the files of whoever wants to challenge the legality of the NSA's unwarranted domestic surveillance programs.

The case was United States. v. Warshak et. al., and it involved the prosecution of Steven and Harriet Warshak, owners of Enzyte (a herb-based "male enhancement" supplement). The court upheld Warshak's conviction, more-or-less, because of the good-faith exception to the exclusionary rule (whereby law enforcement is recognized to have been doing its job and following the law as it existed then).

(I will note here that I vehemently disagree with the so-called "good faith exception".)

However--and this is encouraging--the court ruled as unconstitutional the very statutes that enabled the prosecution's secret evidence-gathering.

Circuit Judge Keith, concurring (emphasis mine) (the last couple of lines are my favorites):

     Following NuVox’s policy, the provider would have destroyed Warshak’s old emails but for the government’s request that they maintain all current and prospective emails for almost a year without Warshak’s knowledge. In practice, the government used the statute as a means to monitor Warshak after the investigation started without his knowledge and without a warrant. Such a practice is no more than back-door wiretapping. I doubt that such actions, if contested directly in court, would withstand the muster of the Fourth Amendment. Email, much like telephone, provides individuals with a means to communicate in private. See Warshak v. United States , 490 F.3d 455, 469-70 (6th Cir. 2007), vacated , 532 F.3d 521 (6th Cir. 2008) (en banc). The government cannot use email collection as a means to monitor citizens without a warrant anymore than they can tap a telephone line to monitor citizens without a warrant. The purpose of § 2703, along with the Stored Communications Act as a whole, is to maintain the boundaries between a citizen’s reasonable expectation of privacy and crime prevention in light of quickly advancing technology. S. Rep. 99-541, at 4. To interpret § 2703(f) as having both a retroactive and prospective effect would be contrary to the purpose of the statute as a whole.

     While it was not the issue in today’s decision, a policy whereby the government requests emails prospectively without a warrant deeply concerns me. I am furthermore troubled by the majority’s willingness to disregard the current reading of § 2703(f) without concern for future analysis of this statute.

Thoughts?

Image via techpp.com.