2012] Reconciling Privacy with Progress 227
explicit protections.
1
In 2010, the Sixth Circuit Court of Appeals held in
United States v. Warshak that a reasonable expectation of privacy exists in
e-mail sent through or held with a third party Internet Service Provider
(ISP).
2
E-mail has become a common tool in modern society for
instantaneous communication of thoughts, feelings, and ideas throughout
the world with the simple click of a button.
3
E-mail not only has the ability
to communicate personal information through text, but also through
pictures, video, audio, links to websites, and other forms of media.
4
Over
90% of Internet users have sent or received e-mail,
5
and more than one-
half of the United States’ population uses e-mail daily—amounting to
trillions of e-mail messages sent every year.
6
In recent years, e-mail has
become so pervasive that it is commonly acknowledged as an essential
element in everyday life,
7
and it is typically within an individual’s
immediate reach given the widespread use of smartphones, tablets, and
other e-mail-capable devices.
8
1. See discussion infra Part V.
2. United States v. Warshak, 631 F.3d 266, 284–86 (6th Cir. 2010).
3. Id. at 284 (“People are now able to send sensitive and intimate
information, instantaneously, to friends, family, and colleagues half a world away.
Lovers exchange sweet nothings, and businessmen swap ambitious plans, all with the
click of a mouse button.”).
4. See, e.g., You’re Invited to the Best Yahoo! Mail Ever, YAHOO!,
http://overview.mail.yahoo.com (last visited Oct. 17, 2012) (showing Yahoo! Mail offers
video, audio, and document storage through their e-mail service).
5. Kristen Purcell, Search and Email Still Top the List of Most Popular
Online Activities, P
EW INTERNET & AM. LIFE PROJECT (Aug. 9, 2011),
http://pewinternet.org/Reports/2011/Search-and-email.aspx.
6. Matthew A. Piekarski, E-Mail Content’s Brush with the Reasonable
Expectation of Privacy: The Warshak Decision, 47 U.
LOUISVILLE L. REV. 771, 795
(2009).
7. See Warshak, 631 F.3d at 286 (“Over the last decade, email has become
so pervasive that some persons may consider [it] to be [an] essential means or
necessary instrument[] for self-expression, even self-identification.” (alterations in
original) (quoting City of Ontario v. Quon, 130 S. Ct. 2619, 2630 (2010)) (internal
quotation marks omitted)).
8. See Lee Rainie, Tablet and E-Book Reader Ownership Nearly Double
Over the Holiday Gift-Giving Period, P
EW INTERNET & AM. LIFE PROJECT (Jan. 23,
2012), http://pewinternet.org/Reports/2012/E-readers-and-tablets.aspx (noting that in
2012, 19% of adults owned a tablet computer); Aaron Smith, Nearly Half of American
Adults Are Smartphone Owners, P
EW INTERNET & AM. LIFE PROJECT (Mar. 1, 2012),
http://pewinternet.org/Reports/2012/Smartphone-Update-2012.aspx (reporting that
nearly one-half of adult cell phone users are smartphone owners, allowing mobile