IT ISN'T JUST JUDGES who define the protections of the 4th Amendment's ban on unreasonable searches and seizures. So do ordinary citizens, with the way they live their lives.
A federal appeals court has reaffirmed that principle by ruling that e-mail messages stored by an Internet service provider deserve the same privacy protections as the contents of telephone calls. In both situations, the legal touchstone is the same: whether users of a communications service have a "reasonable expectation of privacy."
Essentially upholding a lower court's injunction growing out of a fraud investigation, the U.S. 6th Circuit Court of Appeals ruled Monday that federal investigators could not seize stored e-mails, even with a court order, "without providing the relevant account holder or subscriber prior notice and an opportunity to be heard." (If it can be shown that the subscriber had no expectation of privacy, only the ISP would have to be informed.) The decision offers protections for e-mails that extend beyond those in a law known as the Stored Communications Act.
The 6th Circuit decision is faithful to a long tradition of adapting 4th Amendment protections to new technology. The framers of that amendment may not have foreseen Alexander Graham Bell's invention of the telephone, but that didn't prevent the Supreme Court from ruling in 1967 that warrantless wiretapping violated the Constitution. Likewise, the appeals court noted that "e-mail is an ever-increasing mode of private communication, and protecting shared communications through this medium is as important to 4th Amendment principles today as protecting telephone conversations has been in the past."
For most Americans, the court was stating the obvious. Nevertheless, this decision breaks new ground, which may be temporarily plowed over if the government succeeds in dissolving the injunction on appeal. It may be that the Supreme Court will extend to e-mails the constitutional protections accorded to telephone calls only when it reviews a conviction based on improperly seized communications. But sooner or later the high court -- or Congress, which could strengthen privacy protections in the Stored Communications Act -- will get the message: If telephone calls were the letters of the 20th century, e-mails are the phone calls of the 21st.