On Tuesday, the Sixth Circuit Court of Appeals ruled in U.S. v. Warshak [PDF] that the government may not compel a commercial Internet service provider to turn over the contents of a subscriber’s e-mails without first obtaining a warrant based on probable cause. The court recognized fundamental similarities between e-mail and more traditional forms of communication, such as letters and telephone calls, stating that “it would defy common sense to afford e-mails lesser Fourth Amendment protection.” As a result, the court held the Stored Communications Act unconstitutional, to the extent that the statute purports to permit the government to obtain e-mails warrantlessly from a commercial ISP.
If this decision is upheld by the U.S. Supreme Court, or even spurs Congress to update the nearly 25-year-old Stored Communications Act to reflect the changes in technology that have taken place since its passage, it may provide more clarity around the protections for data stored on server-based email systems and other cloud computing services, which could receive less protection than the same data stored locally. The shift is consistent with an overall trend to update privacy laws to reflect new technology, a goal urged most recently by the FTC, as well as by the Department of Commerce in the privacy report that it issued today.