Smiling Bob (John Larson)

It’s nearly 2011, and yet today’s decision out of the U.S. Court of Appeals for the Sixth Circuit is the first of its kind to squarely address the issue of email privacy.

The case, U.S. v. Warshak, et al., involved the founder and former CEO of Berkeley Nutraceuticals, a Cincinnati company that ripped off consumers with its big blue pill Enzyte. Berkeley made a fortune by offering free samples of Enzyte in obnoxious TV ads, but then charging the unwitting customers’ credit cards for subsequent automatic shipments  that the customers didn’t order. A federal grand jury indicted Steven Warshak and his mother, Harriet, for 112 counts of conspiracy, fraud, money laundering, and other crimes relating to their sham supplement business. Much of the evidence used to convict Warshak were his own emails, which the government obtained from his Internet service provider NuVox (n/k/a Windstream), without a warrant.

In the decision, the Sixth Circuit held that individuals have a reasonable expectation of privacy in their emails, just as they do in their phone calls and ordinary mail, and that the government violated  Warshak’s Fourth Amendment rights by compelling NuVox to turn over the emails without first obtaining a warrant based on probable cause (6th Cir. opinion pdf). But the court also ruled that the emails were nonetheless admissible, based on the agents’ good faith reliance on pertinent sections of the Stored Communications Act.

Even though the court declined to throw the emails out, privacy advocates like Electronic Frontier Foundation (www.eff.org) are calling the decision a clear victory.