Warshak v. United States: The Katz for Electronic Communication

28 Pages Posted: 12 Apr 2008

See all articles by Tamar R. Gubins

Tamar R. Gubins

affiliation not provided to SSRN


In a vacated decision in Warshak v. United States, the Sixth Circuit affirmed a preliminary in-junction prohibiting the United States from compelling ISPs to disclose the contents of e-mail communication without providing notice to the account holder, unless the government has obtained a warrant supported by probable cause. The affirmation was based on a Fourth Amendment reading, finding that an ISP that stores or sends e-mail is not a third party from whom electronic communication can be compelled without Fourth Amendment limitations. The case re-heard the case en banc in December.

The vacated opinion boldly extended Fourth Amendment protection to e-mail, an extension comparable to the protection of telephonic communication in 1967. Since that time, however, the courts, however, have been reluctant to question statutory rules or find Fourth Amendment protection for technologies not covered by congressional acts, resulting in a contraction of such protection. Americans have effectively lost Fourth Amendment privacy protection with each new development in communication technology. Congress has been slow to expand existing statutory protections, and has not instituted meaningful new protection for electronic communications. Statutory revisions are unlikely to provide new protections - protections that a judicial reinforcement of Fourth Amendment protection could, and should, provide.

This Note describes the reasoning of the vacated Sixth Circuit decision. It then reviews both privacy jurisprudence and the statutory systems protecting individual privacy in communications, and surveys the varying degrees of protection for different types of communication offered by both. The Note compares the costs and benefits of protecting privacy by statute versus by case law, and argues that the courts should not always defer to Congress. The Sixth Circuit and future courts should affirm the principle that the Fourth Amendment provides protection for electronic communication. Congress can then revise and pass surveillance law legislation that reflects this principle.

Keywords: privacy, ECPA, Fourth Amendment

Suggested Citation

Gubins, Tamar R., Warshak v. United States: The Katz for Electronic Communication. Berkeley Technology Law Journal, Forthcoming, Available at SSRN: https://ssrn.com/abstract=1119383

Tamar R. Gubins (Contact Author)

affiliation not provided to SSRN ( email )

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