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United States v. Warshak, 631 F.3d 266 (6th Cir. 2010) (full-text).

Factual Background[]

Warshak was being investigated for a scheme to defraud customers of his company. The government sought and obtained permission from Warshak's ISP to preserve the contents of Warshak's e-mails, and eventually the government was permitted access to approximately 27,000 e-mails. Warshak moved to suppress this access as forbidden under the Fourth Amendment absent a warrant.

Appellate Court Proceedings[]

The Court held that the contents of the e-mails were protected under the Fourth Amendment. The court compared e-mails to physical mail, observing that "[g]iven the fundamental similarities between e-mail and traditional forms of communication, it would defy common sense to afford e-mails lesser Fourth Amendment protection."[1]

The government may not compel a commercial ISP to turn over the contents of a subscriber's e-mails without first obtaining a warrant based on probable cause. Therefore, because they did not obtain a warrant, the government agents violated the Fourth Amendment when they obtained the contents of Warshak's e-mails. Moreover, to the extent that the SCA purports to permit the government to obtain such e-mails warrantlessly, the SCA is unconstitutional.

The panel noted the importance of e-mail as an "indispensable part" of modern society. The panel held that "if government agents compel an ISP to surrender the contents of a subscriber's e-mails, those agents have thereby conducted a Fourth Amendment search, which necessitates compliance with the warrant requirement absent some exception."[2]


  1. 631 F.3d at 286 ("E-mail is the technological scion of tangible mail, and it plays an indispensable part in the Information Age. . . . As some forms of communication begin to diminish, the Fourth Amendment must recognize and protect nascent ones that arise.")
  2. Id.