Search & Seizure Commentary: Warshak 4 Years Later

In United States v. Warshak, the Sixth Circuit held that the government's warrantless seizure of an individual's emails, while held in storage by an Internet Service Provider, violated the Fourth Amendment. While the Department of Justice presumably honors the Warshak decision within the Sixth Circuit, its reported use of subpoenas or orders, rather than warrants, in all other jurisdictions raised significant privacy concerns. To date, there is no legislation codifying the Warshak decision, and there has been no change in the DOJ manual. Does the Warshak decision foretell future court rulings? In June 2014 the U.S. Supreme Court, in Riley v. California, determined that warrantless cellphone searches incident to arrest were, absent exigent circumstances, prohibited by the Fourth Amendment. This holding is a hopeful sign that Supreme Court justices are open to protecting the content of emails by requiring a warrant before they are accessed.