Tech Shout!

In the series of measures taken in the forte of privacy issues related to the Internet, electronic databases and the like, here’s yet one more.

This week federal investigators broke constitutional limits by searching stored e-mails without a warrant in a fraud investigation, ruled a court appeal.

This case was minutely watched by civil-liberties advocates in the relatively nascent field of Internet privacy, where a three-judge panel of the 6th U.S. Circuit Court of Appeals discovered that e-mail users have a reasonable probability of privacy.

The appeals court stated, “It goes without saying that like the telephone earlier in our history, e-mail is an ever-increasing mode of private communication, and protecting shared communications through this medium is as important to Fourth Amendment principles today as protecting telephone conversations has been in past.”

Even though the wiretapping laws strictly curb the examination of in-transit e-mails, all the same the government had challenged that e-mails stored with service providers could be seized sans warrants. The ruling contradicts that position and comes at a time service providers are offering greater than ever storage space.

Kevin Bankston, attorney for the Electronic Frontier Foundation, a civil-liberties group based in San Francisco maintained, “This landmark decision answered a question that had been dangerously open.”

The unanimous ruling passed by the appeals court sustains the one passed by the lower court, wherein it temporarily blocks investigators from additional e-mail searches without warrants. According to the panel, the government is left with two options, to either provide an account holder a chance to contest such a seizure or the other way is to ahead and prove that the holder had no expectation of privacy.

The ruling is thanks to the fraud investigation conducted against Steven Warshak, owner and president of Berkeley Premium Nutraceuticals, an herbal supplement company known for its ‘Smiling Bob’ ads.

Warshak’s product dubbed ‘Enzyte,’ which is a natural male enhancement product, argued that his Fourth Amendment protections against irrational searches and seizures were breached when the government went after his e-mail records.

The lower court’s rational reasoning that e-mails stored at a service provider “were roughly analogous to sealed letters, in which the sender maintains an expectation of privacy. This privacy interest requires that law enforcement officials obtain a warrant, based on a showing of probable cause,” was given a positive nod by the appeals court too.

According to Justice Department spokesman Dean Boyd in Washington, the judgment was being reviewed. The government could appeal to the full 6th Circuit or the U.S. Supreme Court.

The charges levied against Warshak are that he and his business duped clients and banls out of a minimum of $100 million in a scheme that apparently included billing credit cards without authorization. Warshak pleaded guilty to these charges.

Warshak’s attorney is Martin Weinberg of Boston who stated that, “I think it’s a profoundly important decision applying the Fourth Amendment to electronic privacy rights of citizens.”

He refused to pass a statement on how the ruling could affect the government’s fraud case against Warshak.

The stance that service providers can filter against viruses, spam and pornograph had been argued by government attorneys. However the appeals court put forward a comparison between the practices to postal workers screening mail for drugs or explosives.

“It’s one thing to filter for spam or viruses,” said Susan Freiwald, a University of San Francisco law professor who co-wrote a brief filed in support of Warshak. Adding, “Those are not the same thing as going in and reading people’s e-mails.”

The courts’ labors towards introducing logical protections are indeed commendable, especially at a time when individual privacy stands at extreme risk thanks to the extensive e-mail communications and vast databanks.