For some time I’ve been warning about a growing danger to the 4th amendment. The 4th amendment protects our “persons, houses, papers and effects” but police and some courts have been interpreting this to mean that our private records kept in the hands of 3rd parties — such as E-mail on an ISP or webmail server — are not protected because they are not papers and not in our houses. Or more to the point, that we do not have a “reasonable expectation of privacy” when we leave our private data in the hands of 3rd parties. They have been seizing E-mail without getting a warrant, using the lower standards of the Stored Communications Act.
Recently, we at the EFF got involved in a case challenging that, and argued in our amicus brief that this mail deserved full protection. We won a lower court round and are thrilled that today, the 6th circuit court of appeals has issued a ruling affirming the logic in our amicus and protecting E-mail. We hope and expect this to become the full law of the land, though for now, I might advise all E-mail service providers to move their servers to the 6th circuit (MI, OH, TN, KY) for full protection. It will save you money as you will be able to more simply deal with requests for customer E-mails.
You can read more details on the EFF page on Warshak v USA. Congrats to Kevin Bankston who did the work on the brief. (Amusingly, Google owes him a big debt today, and last week they were hassling him to provide a notarized driver’s license photo in order to get removed from their Street View!)