Feds Can Search Your E-Mail Without Notice, Judge Rules

No matter how much of our personal lives exist in e-mail services such as Gmail, a U.S. District Court judge says

if the government takes a look at your e-mail.

The opinion by federal judge Michael Mosman, handed down in Portland, Oregon, involves a case in which the government has probable cause for a search and asked Google to provide nine months of a Gmail subscriber’s e-mails, seeking evidence of the crime. Furthermore, the feds asked that the search warrant be sealed and that the user shouldn’t be told what was happening.

Gmail isn’t the only e-mail provider that might face this situation. Other services, including Microsoft’s Hotmail and AOL, say in their usage terms that they’ll share information with the government when required by warrant or court order. What’s shocking is that this could be happening without your knowledge.

Mosman’s ruling reversed an earlier decision that the user must get a receipt after the government rifles through e-mail. Though he says electronic communications are protected by the Fourth Amendment, which guards against unreasonable search and seizure, those protections don’t apply to the e-mail user. If the government takes a look at your e-mail, the obligation to disclose what was searched ends at the Internet Service Provider.

Mosman gives this analogy: If the government seizes a package sent by FedEx, the recipient and the sender don’t have to be told, as long as FedEx gets a copy of the warrant. Also, Mosman wrote that the government didn’t take any property, so to speak, because e-mail can be viewed from anywhere.

The nut of the issue is that Mosman doesn’t liken e-mail to personal property stored at home. “If a suspect leaves private documents at his mother’s house and the police obtain a warrant to search his mother’s house, they need only provide a copy of the warrant and a receipt to the mother, even though she is not the ‘owner’ of the documents,” he writes.

However, Mosman writes that the law remains unclear about whether information stored online is like a “virtual home.” I think enough people assume so that we need some legislation to iron this out.