An Ohio man whose e-mail was searched after his Internet service provider was ordered to turn it over to federal investigators and not tell him about it sought and won an injunction against the government last year in U.S. District Court. On Monday, that injunction was upheld by the 6th Circuit Appeals Court.

"The District Court correctly determined that e-mail users maintain a reasonable expectation of privacy in the content of their e-mails," ruled the three-judge panel.

They held that the 1986 Stored Communications Act, which allows the government to obtain an ex-parte order requiring ISPs to turn over e-mail stored on their servers, violated the Fourth Amendment prohibition on unreasonable search and seizures.

Ex-parte orders are those issued by the courts at the government's request without any opportunity for the subject of the order to contest them.

The court ruled that there was a difference between the so-called meta-data stored by the ISP about each e-mail -- the addressee, time of transmission and so forth -- and the content of the e-mail message itself.

The distinction, the court held, was analogous to that between the so-called pen register information about phone calls like the number dialed, or the time and length of the call, and the actual phone conversation itself.

Pen register information can be subpoenaed or obtained through other court orders from telephone companies. But the content of conversations can only be monitored with a warrant.

The U.S. government argued that there could be no reasonable expectation of privacy, because e-mail is sent via a third party, but the court held, "Where the third party is not expected to access the e-mails in the normal course of business ... the party (sending them) maintains a reasonable expectation of privacy."

ISPs, the ruling states, have "mere custody" over the e-mail and subpoenaing them "is insufficient to trump the Fourth Amendment warrant requirement."

In particular the court was concerned that the law allowed the federal government to act without showing probable cause and without allowing the owner of the e-mail account any opportunity to contest, or even know about, the order.

The "combination of a standard of proof less than probable cause and potentially broad ex-parte authorization cannot stand," reads the judgment.

Some observers warned that the ruling might hamper federal counter-terrorism efforts.

Although there are other means for U.S. agencies to access such information in intelligence-gathering or national security cases, McCarthy said, the ruling would have consequences in those areas.

"The USA Patriot Act broke down the wall between intelligence and law enforcement. Criminal prosecutors can now share information with the intelligence side of the house," he said.

But if the ruling stopped prosecutors from gathering information, it could not be passed along. "If you can't get it, you can't share it," he said.

McCarthy also said that the Stored Communications Act had brought "some uniformity to the law."

"Until this act was passed there was a lot of confusion about what standards should apply" to e-mail, because of the numerous gray areas created by the technology: for example, whether e-mail subject lines were meta-data or part of the content.

In general, he said, it was "better for Congress to draw these lines than for the courts to do so on an ad hoc basis by drawing on Fourth Amendment principles."

But former Reagan and George H. W. Bush administration Justice Department official David Rivkin told UPI he believed the case had been correctly decided, and said it would have limited impact.

"This concerns a criminal case, in which the very highest levels of constitutional protections rightly apply," he said, adding that the distinction between meta-data and content was an important one.

He said that, even given the expectation of privacy, the context of the effort to access the data -- whether it was part of a criminal case or an intelligence-gathering effort, for instance -- had to be considered.

At the end of the day, "The question is, is the search reasonable?" he said. "People on both sides tend to think of these issues in absolute terms," he said, but in reality, there was "a complex matrix" of factors the courts had to take into account.

Justice Department spokesman Dean Boyd said prosecutors were reviewing the case to decide whether and how to appeal. The decision can be challenged before the full circuit court, or directly to the U.S. Supreme Court.

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