After many years of legal uncertainty, a federal appeals court has finally declared that emails have the same Fourth Amendment protections as regular mail and telephone calls.
“Given the fundamental similarities between email and traditional forms of communication, it would defy common sense to afford emails lesser Fourth Amendment protection,” the Sixth Circuit Court of Appeals ruled (PDF).
If the ruling is not overturned by the Supreme Court, it will put an end to the practice of law enforcement agents using court orders, rather than warrants, to gain access to emails. Court orders require a much lower standard than warrants.
Kevin Bankston of the digital rights group EFF told Wired.com he expects Internet service providers will comply with the ruling, meaning they will start requesting warrants when law enforcement requests access to emails.
Privacy advocates say law enforcement has been using a loophole in the 1986 Stored Communications Act to get emails without a warrant. Under that law, information stored on servers is subject only to a court order.
As Wired notes, the law was written at a time when emails — then still a novelty — weren’t stored on remote servers. But today’s email services, such as Hotmail and Gmail, use servers to store all emails, giving law enforcement warrantless access.
A group of businesses, including Microsoft, Google and AOL, have been lobbying the US to update its laws so that all emails require a warrant.