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Court Refuses To Rule On ECPA Warrantless E-mail Searches 122

Posted by Soulskill
from the not-yet-ripe dept.
utkalum writes "After Steven Warshak's indictment and conviction on charges of mail and wire fraud, money laundering and other federal charges, he learned that key evidence in the case was obtained by the government under a 1986 law permitting no-warrant searches of email communications stored for longer than 180 days. He also learned that, despite the Electronic Communication Privacy Act's requirement that such searches be disclosed to the suspect no more than 90 days after they were commenced, the Government simply couldn't be bothered to comply. Now, the US Court of Appeals for the Sixth Circuit has refused (9-5) to hear Warshak's constitutional challenge to the Act (PDF), claiming that the question raised is 'not yet ripe' for adjudication. It's worth noting that the court also vacated an earlier injunction against using that act to read the e-mail of other people in Warshak's district. Read on for an excerpt from the ruling.
'Not only do "we have no idea whether or when" such a search will occur but we also "have no idea" what e-mail accounts, or what types of e-mail accounts, the government might investigate ... That uncertainty looms large in a debate about the expectations of privacy in e-mail accounts. The underlying merits issue in the case is this: In permitting the government to search e-mails based on "reasonable grounds," is 2703(d) consistent with the Fourth Amendment, which generally requires "probable cause" and a warrant in the context of searches of individuals, homes and, perhaps most analogously, posted mail? The answer to that question will turn in part on the expectations of privacy that computer users have in their e-mails — an inquiry that may well shift over time, that assuredly shifts from internet-service agreement to internet-service agreement and that requires considerable knowledge about everevolving technologies.'
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Court Refuses To Rule On ECPA Warrantless E-mail Searches

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