Consumers would do well to remember the name Steven Warshak.
Based on a district court's ruling that the government appealed in the 6th Circuit and lost, consumers should expect that their email is not available even in a criminal investigation unless the consumer has "...prior notice and an opportunity to be heard" regarding a motion.
The Court's ruling, based on emails requested from two ISPs, Nuvox and Yahoo (functioning as an ISP in this case because it stored email), essentially states that email can't be retrieved on an investigative basis such as a search warrant, but that notice must be given to the other side, as in a subpoena. This allows the consumer to retain counsel and challenge the release of the email.
It is important to note that this ruling is only precedent -- it is not a law. It is also important to note that consumers should not expect similar protections for their work email. Multiple decisions over the years have defined email stored in an employee's email account as the employer's property. Because of this, employers do not need permission to monitor, copy, review or use email in the workplace.
Now that the 6th Circuit has said that consumer email is protected until ordered released by a subpoena, the email has roughly the same protections as postal mail. This makes sense to us because the intent of the communication is the same, and only the medium is different.
We believe the next big challenge will occur at the intersection of a consumer accessing their personal email from a workplace computer. Such instances have previously been considered part of the employer/employee relationship. One wonders, however, if a challenge based on Warshak might provoke change.
Labels: 6th Circuit, email, privacy, Warshak
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