Legal Commentary

Does Federal Law Allow the Government to Obtain Opened E-mail With Less than a Warrant?

By Orin Kerr

There?s an important e-mail privacy dispute brewing in Colorado: DOJ and Yahoo are clashing in court on the ground that the Ninth Circuit covered in its very weird opinion in Theofel v. Farey-Jones (2004), on whether the federal privacy law known as the Stored Communications Act allows the government to compel opened e-mail from an ISP with less process than a probable cause warrant. You can find Declan McCullagh?s news report here, and the briefs here.

This is big news, and not just because it was mentioned on the Drudge Report. DOJ and some of the ISPs have been disagreeing about this issue quietly for years. What makes this case unusual is that the two sides have decided to litigate it in open court. Assuming the parties are litigating this for keeps, it should at least work its way up to the Tenth Circuit. Further, the decision might very well create a split of invalidate a federal statute in a way that prompts Supreme Court review. So stay tuned: This is an important case to watch.

My own view on the law here is a bit nuanced. On one hand, I think Theofel was wrong as a matter of statutory construction. The statute does in fact allow it DOJ to compel the opened e-mail with less than a warrant, for reasons explored in this article. On the other hand, I think that it will usually violate the Fourth Amendment to compel e-mail with less than a warrant, so the statute that allows this is unconstitutional, for reasons explored in this article. (The final version of the article, out in a week or two, has a more detailed analysis of the unconstitutionality of this aspect of the statute than did the draft of it.) So I think DOJ is right as a matter of statutory interpretation, but Yahoo is right about the Constitution.

Full post as published by The Volokh Conspiracy on April 14, 2010 (boomark / email).