Not long ago, the U.S. Court of Appeals for the Sixth Circuit decided government agents cannot search or seize the contents of e-mail stored by a service provider without a warrant.
In U.S. v. Warshak, the defendants had been convicted of mail fraud, wire fraud and bank fraud in a scheme involving male enhancement drugs. Among other things, they argued the e-mail evidence against them should have been excluded because it was obtained without a warrant and without their knowledge or consent.
On this issue, the court reasoned that defendants were entitled to as much of an expectation of privacy in e-mail stored by their Internet service providers as they had in their postal mail and their telephone calls. From the opinion as quoted by the Electronic Frontier Foundation:
Given the fundamental similarities between e-mail and traditional forms of communication [like postal mail and telephone calls], it would defy common sense to afford e-mails lesser Fourth Amendment protection. ... It follows that e-mail requires strong protection under the Fourth Amendment.
If the Sixth Circuit's opinion on the matter indicates a developing trend, I suppose I shouldn't be surprised that prosecutors in Michigan are pursuing criminal charges against a man who read his wife's e-mails and then gave them to her first husband-her son's father-because he thought they indicated the boy might be in danger.
But the prosecutor, Jessica Cooper, called the man a hacker. She said:
[The e-mail account] was password protected, he had wonderful skills and was highly trained. Then he downloaded them and used them in a very contentious way.
CNET News reports the statute under which the man is charged typically covers identity or intellectual property theft. If he is convicted, he faces up to five years in prison.