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Portion of Stored Communications Act Unconstitutional

Court and Case:

United States v. Warshak, No. 08-3997 (6th Cir. Dec. 14, 2010).

Stop me if you’ve heard this one before…

Under the Stored Communications Act, when a governmental entity seeks disclosure of stored communications it is required by 18 U.S.C. §2703(b) to provide notice to the target.

18 U.S.C. §2705 establishes a process by which they can delay that required notice:

  • For a period not to exceed 90 days;
  • Only if either a court determines or a supervisory official certifies that one of five adverse results may occur if the required notice is provided; and
  • 90 day extensions are allowed only by the court or certification.

Under 18 U.S.C. 2703§(d), the Stored Communications Act allowed government-compelled disclosure of emails on a standard of less than probable cause:

A court order for disclosure… shall issue only if the governmental entity offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation. (emphases added)

Compare this with the probable cause standard for a search warrant of: “information sufficient to warrant a prudent person’s belief that evidence of a crime or contraband would be found in a search.”

When Warshak visited the Sixth Circuit back in 2007 in his civil suit, Warshak v. United States, 490 F.3d 455 (6th Cir. 2007) (now vacated) we learned the following facts:

  • The Government got court-ordered access to Warshak’s email accounts without notice to Warshak and violated both the SCA and the Court’s Order by not notifying Warshak for over a year.
  • Warshak asked the Government to provide assurances that it would not seek similar orders and the Government refused.
  • Warshak sought an injunction prohibiting such future searches.

The now-vacated opinion by the Sixth Circuit from 2007 is a really great read. That panel held that email users always have a reasonable expectation of privacy against the outside world in their email.

However, the Sixth Circuit reheard the case en banc and in a head-scratching 9-5 decision in 2008, Warshak v. United States, 532 F.3d 521 (6th Cir. 2008) (en banc), decided that Warshak’s constitutional claim was not ripe for judicial resolution. The majority wrote, “The question is whether the government will conduct another ex parte search of his emails, a possibility that is exceedingly remote, given that [there is no longer an ongoing investigation.]”

The dissent in that en banc decision was as blistering as it was eloquent:

History tells us that it is not the fact that a constitutional right is at issue that portends the outcome of a case, but rather what specific right we are talking about. If it is free speech, freedom of religion, or the right to bear arms, we are quick to strike down laws that curtail those freedoms. But if we are discussing the Fourth Amendment’s right to be free from unreasonable searches and seizures, heaven forbid that we should intrude on the government’s investigatory province and actually require it to abide by the mandates of the Bill of Rights.

I can only imagine what our founding fathers would think of this decision. If I were to tell James Otis and John Adams that a citizen’s private correspondence is now potentially subject to ex parte and unannounced searches by the government without a warrant supported by probable cause, what would they say? Probably nothing, they would be left speechless.

Warshak’s criminal case continued, and today a Sixth Circuit panel got another shot at this fact pattern in United States v. Warshak, No. 08-3997 (6th Cir. Dec. 14, 2010).

The most striking thing about this opinion is that two of the judges on this panel, Judges Boggs and McKeague, who wrote and joined today’s majority opinion respectively, were formerly part of the en banc majority that found that at that time the issue was not ripe for adjudication. Unless other votes have shifted in the interim, this suggests that, even if this case were to be reheard en banc, there are not likely to be enough votes to undo the result again. This time, email privacy may come out unscathed from the Sixth Circuit.

Today’s panel held that, “Warshak enjoyed a reasonable expectation of privacy in his emails vis-a-vis NuVox, his Internet Service Provider. See Katz v. United States, 389 U.S. 347 (1967). Thus, government agents violated his Fourth Amendment rights by compelling NuVox to turn over the emails without first obtaining a warrant based on probable cause.”

The court wrote,

[T]he very fact that information is being passed through a communications network is a paramount Fourth Amendment consideration…. Second, the Fourth Amendment must keep pace with the inexorable march of technological progress, or its guarantees will wither and perish. See Kyllo v. United States, 533 U.S. 27, 34 (2001) (noting that evolving technology must not be permitted to “erode the privacy guaranteed by the Fourth Amendment”); see also Orin S. Kerr, Applying the Fourth Amendment to the Internet: A General Approach, 62 Stan. L. Rev. 1005, 1007 (2010) (arguing that “the differences between the facts of physical space and the facts of the Internet require courts to identify new Fourth Amendment distinctions to maintain the function of Fourth Amendment rules in an online environment”).

The court continues,

If we accept that an email is analogous to a letter or a phone call, it is manifest that agents of the government cannot compel a commercial ISP to turn over the contents of an email without triggering the Fourth Amendment. An ISP is the intermediary that makes email communication possible. Emails must pass through an ISP’s servers to reach their intended recipient. Thus, the ISP is the functional equivalent of a post office or a telephone company. As we have discussed above, the police may not storm the post office and intercept a letter, and they are likewise forbidden from using the phone system to make a clandestine recording of a telephone call—unless they get a warrant, that is. See Jacobsen, 466 U.S. at 114; Katz, 389 U.S. at 353. It only stands to reason that, if government agents compel an ISP to surrender the contents of a subscriber’s emails, those agents have thereby conducted a Fourth Amendment search, which necessitates compliance with the warrant requirement absent some exception.

The court sums up this portion of the opinion with,

Accordingly, we hold that a subscriber enjoys a reasonable expectation of privacy in the contents of emails “that are stored with, or sent or received through, a commercial ISP.”… The government may not compel a commercial ISP to turn over the contents of a subscriber’s emails 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 emails. Moreover, to the extent that the SCA purports to permit the government to obtain such emails warrantlessly, the SCA is unconstitutional.

It’s almost enough to make one believe that James Otis and John Adams got their voices back.

See also:

Categories: Fourth Amendment, Online Privacy.

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