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U.S. Court Weighs E-mail Privacy, Again

At issue: whether e-mail messages deserve the same privacy protection as telephone calls.

In a replay of a court decision from two years ago, civil liberties groups are once again trying to persuade the U.S. Court of Appeals for the Sixth Circuit that e-mail messages deserve the same privacy protection as telephone calls.

On Wednesday, the Electronic Frontier Foundation, the ACLU of Ohio, and the Center for Democracy and Technology filed an amicus brief in Warshak v. USA in support of appellant Steven Warshak.

Warshak argues that a court order secretly directing his ISP to preserve his e-mail violates federal privacy laws and his expectation of privacy.

The government's interest in Warshak follows from its 2005 investigation of allegations of mail and wire fraud, money laundering, and other federal offenses arising from the operations of Steven Warshak's company Berkeley Premium Nutraceuticals, a maker of herbal pills for the treatment of erectile dysfunction.

In May 2005, the government obtained an order from an Ohio judge directing Internet service provider NuVox Communications to turn over electronic messages belonging to Warshak and his associates. In September of that year, the government used a similar order to obtain Warshak's e-mail from Yahoo.

In November 2006, the EFF, the ACLU of Ohio, and the CDT filed a similar amicus brief in support of Warshak, arguing that e-mail deserves the same legal protection as telephone calls. In June 2007, the 6th U.S. Circuit Court of Appeals ruled in Warshak's favor. But that decision was vacated on procedural grounds. And now the case is back before the court.

In a statement, EFF senior staff attorney Kevin Bankston says that the Justice Department conducted what amounts to a "back-door wiretap" when it intercepted six months of Warshak's e-mail without a warrant. "Thankfully, this abuse has given the appeals court yet another opportunity to clarify that the Fourth Amendment protects the privacy of e-mail against secret government snooping, even when it's in the hands of an e-mail provider," he said.

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