CYBERSPACE — A U.S. federal appeals court yesterday upheld a district court ruling in favor of a person whose e-mail was copied by government investigators from servers at Yahoo and another ISP. In finding that the government violated Steven Warshak’s Fourth Amendments rights against unreasonable search and seizure, it may have prevented the government from loosely applying a key tool in its ability to obtain e-mail records without a warrant: the Stored Communications Act (SCA). Warshak was the subject of a 2005 criminal investigation of himself and his vitamin company. In March 2005, investigators obtained an order from a federal magistrate to acquire e-mail records from Warshak’s NuVox account, ordering NuVox not to disclose that order for at least 90 days. Later in September, the government issued a similar request to Yahoo. Both complied with the feds.

The origin of the magistrate’s order was a portion of the SCA that stated the government had “specific and articulable facts showing that there are reasonable grounds to believe that the records or other information sought are relevant and material to an ongoing criminal investigation.”

Warshak didn’t learn that his e-mails had been scanned in June 2006. Immediately after that, he sought a restraining order against the government seizing any more records. A district court in Ohio granted that part of Warshak’s request concerning e-mails already sent, though it refused to extend the order into the future. The government appealed the part that the district court granted.

In its appeal, the government claimed it went with an exception to the SCA, which otherwise states seizures of e-mails from an ISP can only take place with prior notice given to the individual, or else through a court-granted search warrant.

That exception is with regard to a federal criminal investigation, which the case against Warshak supposedly was. But as the appeals court noted from its thorough read of the SCA, the ability to delay notice to a customer can only come from a court order – and no such court ever convened on that topic in Warshak’s case.

Part of the government’s case argued that Warshak wasn’t really injured by having his e-mails scanned, implying that he may never have been able to claim “injury” had he never been notified of the seizure act in the first place. The appeals court correctly dismissed this argument on the grounds that Warshak was injured because the Constitution says his rights were, in fact, violated.

The government also argued that e-mails are searched all the time for harmful or pornographic content, or possible references to terrorist action, without harm to the senders or recipients..

“The reasonable expectation of privacy of an e-mail user goes to the content of the e-mail message,” read the court’s decision. “The fact that a computer scans millions of e-mails for signs of pornography or a virus does not invade an individual’s content-based privacy interest in the e-mails and has little bearing on his expectation of privacy in the content. In fact, these screening processes are analogous to the post office screening packages for evidence of drugs or explosives, which does not expose the content of written documents enclosed in the packages.”

That part of the decision could be big when it comes to future lawmaking. It qualifies things between the concept of what a message says against how a message says it. The Constitution protects free speech but it does not protect against the way people present things. What Sixth Circuit Judges Martha Daughtrey and John Martin found, was that a message may do harm, and can be stopped, without trampling upon the rights of the person who creates or sends the message.

For this specific case, however, the judges found automatic surveillance of electronic communications and the seizure of specific messages sent by one person are not the same thing. Screening one person’s email injures the individual who sends the email; the automatic screening of everyone’s email does not.

But what may be the weirdest thing about all of this comes later in the judges’ opinion, in response to the government’s argument that old e-mails are effectively garbage, and that the sender has no more expectation that old e-mails be private than a hotel guest should expect his room to remain private after he checks out.

“This analogy lacks any connection to the actual practices of commercial ISPs,” Judges Daughtrey and Martin wrote in their ruling. “When a hotel guest checks out of his room, another person will occupy it, access every part of it in which he might have maintained any privacy interest, put his underwear in the same drawer, and otherwise extinguish any privacy interest to the fullest extent. Dominion and control over the hotel room is entirely surrendered to the hotel management, which in turn passes it on to the next guest who occupies the room. On the other hand, when an e-mail user stops using an e-mail address that is tied to his personal identity, he would certainly not expect that somebody else could come along, sign up for the same account, and not only send e-mails in his name, but read every past e-mail that he had failed to delete from the account or sent to someone else. There is no reason to believe that dominion or control over the contents of the account is yielded to the ISP or another user. This analogy is entirely inapposite.”

To the government’s argument that Warshak shouldn’t have expected privacy on an e-mail account that he may or may not have obtained under false pretenses, the appeals court kicked the government in the ass again.

“This argument is another red herring, primarily because it cannot account for the majority of commercial e-mail services that offer their services for free. This obviously begs the question of why someone would have to commit fraud to get an account.”

Electronic Freedom Foundation staff attorney Kevin Bankston summed up the court’s findings well, saying, “Email users expect that their Hotmail and Gmail inboxes are just as private as their postal mail and their telephone calls. The government tried to get around this common-sense conclusion, but the Constitution applies online as well as offline, as the court correctly found. That means that the government can’t secretly seize your emails without a warrant.”