I don't care that this was part of a spammer's defense, this is an unqualified victory for basic privacy rights, and will probably end up being overturned by the Supreme Court...
A federal appeals court on Monday issued a landmark decision (.pdf) that holds that e-mail has similar constitutional privacy protections as telephone communications, meaning that federal investigators who search and seize emails without obtaining probable cause warrants will now have to do so.
But a district court held that the SCA violates the Fourth Amendment by allowing the feds to secretly seize e-mail without probable cause warrants. Under the SCA, the government is required to get warrants for any e-mails that have been stored on third-party servers for less than 180 days. (the SCA came into effect long before the days of eternal Gmail storage.) After that, it can use an administrative subpoena or a different court order, provided it notified the target of the investigation. (the feds missed their legally mandated deadline for notifying Warshak by nearly a year.) To make matters more complicated, the government argued that the definition of "electronic storage" in the statute meant the feds only needed warrants when e-mail had yet to be opened or downloaded.
Now that the feds have their National Security Letters, it is already a moot point in some cases. The feds can just whip up an excuse to send out a NSL, and if anyone mentions that they received one, they're getting some good time in the pokey. Still, this is one more good ruling, and it really is common sense. Why should the feds simply be able to get around the fourth amendment just because it is an electronic communication? It's not like it is the least bit difficult for law enforcement to be able to pull electronic records if they act fast enough. Nor for that matter is there any fundamental difference between an electronic message and any other type of message that they might want to sieze by court order.
True, Mike. Sadly, we seem to be beyond the point where any law matters in this country. The only ones left to "ask the court" for post-mortem damages will ultimately be next-of-kin.
At that point, they'll probably discourage such a process by doing like the Chinese do - and charging the victim -er, survivors - for the execution bullets.