In a decision that will significantly impact the ability of the government to access electronic communications, the United States Court of Appeals for the Sixth Circuit on June 18, 2007, affirmed a district court’s issuance of a preliminary injunction prohibiting governmental entities from obtaining Internet Service Providers’ (“ISP”) subscribers’ e-mail communications unless the subscriber first receives prior notice and an opportunity to be heard. Warshak v. United States, No. 06-4092 (6th Cir. 2007). The Court found unconstitutional the Stored Communications Act (“SCA”) provisions allowing Government seizure of such communications without prior subscriber notice, because the court order could be issued without a showing of probable cause that the subscriber had committed a crime. The Sixth Circuit found that individuals have an expectation of privacy regarding the contents of emails sent or stored through an Internet Service Provider (ISP).
Electronic Communications Privacy Act
ISP Data Retention Legislation Introduced; ISPs and Privacy Advocates Fear Broad Mandates
Last month, a group of eight Republican lawmakers introduced H.R. 837, the Internet Stopping Adults Facilitating the Exploitation of Today’s Youth (SAFETY) Act 2007. The bill would give the Attorney General very broad authority to enact rules requiring Internet Service Providers (“ISPs”) to retain records so law enforcement could access their customers’ online activities.