US v. Warshak: Will Fourth Amendment Protection be Delivered to Your Inbox?

June 16, 2012

The Warshak decision is a long-overdue federal case extending Fourth Amendment protection to electronic communications stored with third parties. In holding that citizens have a “reasonable expectation of privacy” for stored e-mail messages, the Sixth Circuit decision represents a shift towards a stricter interpretation of the Fourth Amendment as it applies to modern forms of communication. Applauded by civil liberties and privacy protection groups, Warshak may pave the way for communication over other digital means (e.g., cloud computing, Facebook, LinkedIn) to obtain Fourth Amendment protection, through application of a two-prong test to determine the existence of a reasonable expectation of privacy. Warshak also highlights blatant loopholes in the current federal statutory scheme, underscoring the need for revision of the Stored Communications Act in order to bring the law in line with modern technology.