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:

• Kevin Bankston, Breaking News on EFF Victory: Appeals Court Holds that Email Privacy Protected by Fourth Amendment, EFF DeepLinks (Dec. 14, 2010).
• Paul Ohm, Court Rules Email Protected by Fourth Amendment, Freedom to Tinker (Dec. 14, 2010).
• Orin Kerr, Sixth Circuit Rules that E-Mail Protected by the Fourth Amendment Warrant Requirement, The Volokh Conspiracy (Dec. 14, 2010).

Sampson v. Buescher, No. 08-1389 (10th Cir. 2010).

In my Cyberlaw course, we discuss both the first amendment rights of anonymous speakers online as well as the menace of spam (typically sent by an anonymous speaker). In some contexts, a right to speak anonymously looks like an important democracy-supporting tool. In other contexts it looks like an unwarranted cover for all manner of mischief.

In the context of political campaign contributions, states have tended towards transparency, particularly when one considers the possibility that anonymous contributions to political candidates could have a corrupting influence and would essentially eviscerate any spending limits.

Today, in Sampson v. Buescher, the Tenth Circuit asked whether transparency regarding contributions to ballot measures was as important as transparency about contributions to candidates and decided that it was not.

This issue has caused angst before when someone created a mashup of donors to California’s Proposition 8 (against gay marriage) with Google Maps and created Prop 8 Maps. Is this government transparency or a witch hunt?

The Sampson case presented perhaps the perfect plaintiffs for those who favor anonymous contributions to ballot measures, as the small band of residents spent a paltry sum to fight the annexation of their neighborhood.

The Court held that,

Colorado law, as applied to Plaintiffs, has violated their constitutional freedom of association. There is virtually no proper governmental interest in imposing disclosure requirements on ballot-initiative committees that raise and expend so little money, and that limited interest cannot justify the burden that those requirements impose on such a committee.

And perhaps that strikes the right balance for this small group. But when I reflect on the deceptive campaign waged by Pacific Gas & Electric in the June 2010 California election regarding Prop 16, which would have required a 2/3 vote of the electorate before a public agency could enter the retail power business (and hence compete with PG&E!), I know that sometimes information about a ballot measure’s supporters is the key piece of information a voter needs to make an informed decision.

The Tenth Circuit may not have missed this point either, as they also wrote,

The case before us is quite unlike ones involving the expenditure of tens of millions of dollars on ballot issues presenting “complex policy proposals.” Cal. Pro-Life Council, Inc. v. Getman, 328 F.3d 1088, 1105 (9th Cir. 2003). We say only that Plaintiffs’ contributions and expenditures are well below the line.

If this decision is limited to small groups of neighbors spending less than $1,000, then it’s a good win for freedom of association, without necessarily being a corresponding loss for proponents of government transparency. Continuing to strike the right balance between these laudable aims, both online and off, remains the challenge.

See also:

• Valerie Richardson, Colo. group scores court win in free-speech case, The Washington Times (Nov. 9, 2010).
• Major Legal Victory for Free Speech, Institute for Justice (Nov. 9, 2010).

United States v. Comprehensive Drug Testing (9th Cir. Sep. 13, 2010).

On August 26, 2009, the United States Court of Appeals for the Ninth Circuit, sitting en banc, issued an opinion in United States v. Comprehensive Drug Testing. On December 18, 2009, the Court issued an order saying,

“The court is considering whether it should grant panel or full-court rehearing in this matter and will issue an order granting or denying rehearing in due course.”

The answer came in the form of a revised en banc opinion issued today accompanied by this order:

“The revised opinion filed concurrently herewith shall constitute the final action of the court. No petitions for rehearing will be considered.”

So this appears to be the Ninth Circuit’s final word on this case. A quick and dirty comparison of the 2009 opinion with today’s revision shows that largely the changes are as follows:

The majority opinion originally authored by Chief Judge Kozinski is now a “Per Curiam” opinion but virtually all of the text of that opinion that sought to give future guidance to magistrate judges on how to handle computer searches was moved (mostly unchanged) to the concurrence by Kozinski, joined by Kleinfeld, W. Fletcher, Paez, and M. Smith.

Here are the main passages removed from the majority opinion and placed into Kozinski’s concurrence:

Throughout, we take the opportunity to guide our district and magistrate judges in the proper administration of search warrants and grand jury subpoenas for electronically stored information, so as to strike a proper balance between the government’s legitimate interest in law enforcement and the people’s right to privacy and property in their papers and effects, as guaranteed by the Fourth Amendment.

…

To avoid this illogical result, the government should, in future warrant applications, forswear reliance on the plain view doctrine or any similar doctrine that would allow it to retain data to which it has gained access only because it was required to segregate seizable from non-seizable data. If the government doesn’t consent to such a waiver, the magistrate judge should order that the seizable and non-seizable data be separated by an independent third party under the supervision of the court, or deny the warrant altogether.

In addition, while it is perfectly appropriate for the warrant application to acquaint the issuing judicial officer with the theoretical risks of concealment and destruction of evidence, the government must also fairly disclose the actual degree of such risks in the case presented to the judicial officer. In this case, for example, the warrant application presented to Judge Johnson discussed the numerous theoretical risks that the data might be destroyed, but failed to mention that Comprehensive Drug Testing had agreed to keep the data intact until its motion to quash the subpoena could be ruled on by the Northern California district court, and that the United States Attorney’s Office had accepted this representation. This omission created the false impression that, unless the data was seized at once, it would be lost. Comprehensive Drug Testing, 513 F.3d at 1132 (Thomas, J., dissenting). Such pledges of data retention are obviously highly relevant in determining whether a warrant is needed at all and, if so, what its scope should be. If the government believes such pledges to be unreliable, it may say so and explain why. But omitting such highly relevant information altogether is inconsistent with the government’s duty of candor in presenting a warrant application. A lack of candor in this or any other aspect of the warrant application shall bear heavily against the government in the calculus of any subsequent motion to return or suppress the seized data.

Finally, the process of sorting, segregating, decoding and otherwise separating seizable data (as defined by the warrant) from all other data must be designed to achieve that purpose and that purpose only. Thus, if the government is allowed to seize information pertaining to ten names, the search protocol must be designed to discover data pertaining to those names only, not to others, and not those pertaining to other illegality. For example, the government has sophisticated hashing tools at its disposal that allow the identification of well-known illegal files (such as child pornography) without actually opening the files themselves. These and similar search tools may not be used without specific authorization in the warrant, and such permission may only be given if there is probable cause to believe that such files can be found on the electronic medium to be seized.

…

To guard against such unlawful conduct in the future, the warrant application should normally include, or the issuing judicial officer should insert, a protocol for preventing agents involved in the investigation from examining or retaining any data other than that for which probable cause is shown. The procedure might involve, as in this case, a requirement that the segregation be done by specially trained computer personnel who are not involved in the investigation. It should be made clear that only those personnel may examine and segregate the data. The government must also agree that such computer personnel will not communicate any information they learn during the segregation process absent further approval of the court.

At the discretion of the issuing judicial officer, and depending on the nature and sensitivity of the privacy interests involved, the computer personnel in question may be government employees or independent third parties not affiliated with the government. The issuing judicial officer may appoint an independent expert or special master to conduct or supervise the segregation and redaction of the data. In a case such as this one, where the party subject to the warrant is not suspected of any crime, and where the privacy interests of numerous other parties who are not under suspicion of criminal wrongdoing are implicated by the search, the presumption should be that the segregation of the data will be conducted by, or under the close supervision of, an independent third party selected by the court.

Once the data has been segregated (and, if necessary, redacted), the government agents involved in the investigation may examine only the information covered by the terms of the warrant. Absent further judicial authorization, any remaining copies must be destroyed or, at least so long as they may be lawfully possessed by the party from whom they were seized, returned along with the actual physical medium that may have been seized (such as a hard drive or computer). The government may not retain copies of such returned data, unless it obtains specific judicial authorization to do so. Also, within a time specified in the warrant, which should be as soon as practicable, the government must provide the issuing officer with a return disclosing precisely what data it has obtained as a consequence of the search, and what data it has returned to the party from whom it was seized. The return must include a sworn certificate that the government has destroyed or returned all copies of data that it is not entitled to keep. If the government believes it is entitled to retain data as to which no probable cause was shown in the original warrant, it may seek a new warrant or justify the warrantless seizure by some means other than plain view.

…

Instead of

“We believe it is useful, therefore, to update Tamura to apply to the daunting realities of electronic searches which will nearly always present the kind of situation that Tamura believed would be rare and exceptional—the inability of government agents to segregate seizable from non-seizable materials at the scene of the search, and thus the necessity to seize far more than is actually authorized.”

The new opinion just says,

“We have updated Tamura to apply to the daunting realities of electronic searches.”

…

In general, we adopt Tamura’s solution to the problem of necessary over-seizing of evidence: When the government wishes to obtain a warrant to examine a computer hard drive or electronic storage medium in searching for certain incriminating files, or when a search for evidence could result in the seizure of a computer, see, e.g., United States v. Giberson, 527 F.3d 882 (9th Cir. 2008), magistrate judges must be vigilant in observing the guidance we have set out throughout our opinion, which can be summed up as follows:

1. Magistrates should insist that the government waive reliance upon the plain view doctrine in digital evidence cases. See p. 11876 supra.

2. Segregation and redaction must be either done by spe cialized personnel or an independent third party. See pp. 11880-81 supra. If the segregation is to be done by government computer personnel, it must agree in the warrant application that the computer personnel will not disclose to the investigators any information other than that which is the target of the warrant.

3. Warrants and subpoenas must disclose the actual risks of destruction of information as well as prior efforts to seize that information in other judicial for a. See pp. 11877-78, 11886-87 supra.

4. The government’s search protocol must be designed to uncover only the information for which it has probable cause, and only that information may be examined by the case agents. See pp. 11878, 11880-81 supra.

5. The government must destroy or, if the recipient may lawfully possess it, return non-responsive data, keeping the issuing magistrate informed about when it has done so and what it has kept. See p. 11881-82 supra.

Just as Tamura has served as a guidepost for decades, we trust that the procedures we have outlined above will prove a useful tool for the future. In the end, however, we must rely on the good sense and vigilance of our magistrate judges, who are in the front line of preserving the constitutional freedoms of our citizens while assisting the government in its legitimate efforts to prosecute criminal activity.

With all these sections moved to Kozinski’s concurrence, Judge Callahan notes, “The concurrence is not joined by a majority of the en banc panel and accordingly the suggested guidelines are not Ninth Circuit law.”

See Also:

• Orin Kerr, Ninth Circuit Balks in BALCO Case, Denying Super En Banc in United States v. Comprehensive Drug Testing But Amending Opinion to Remove Challenged Section, Volokh Conspiracy (Sep. 13, 2010).

Speaking in Opposition:

1. Sarah Canzoneri, a member of the Children’s Book Guild
2. Scott E. Gant (author and class action specialist)
3. Microsoft
   
4. Amazon.com
5. Science Fiction & Fantasy Writers of America and the American Society of Journalists and Authors
6. Professor Pamela Samuelson, UC Berkeley
7. Cindy Cohn (EFF), on behalf of the Privacy Authors and Publishers
8. Yasuhiro Saito, on behalf of the Japanese P.E.N. Club et al.
9. The French Republic
10. The Federal Republic of Germany
11. The State of Connecticut
12. Questia Media
13. AT&T
14. Cynthia Arato, on behalf of the New Zealand Society of Authors
15. Consumer Watchdog
16. EPIC
17. Open Book Alliance
18. Andrew Devore, on behalf of Arlo Guthrie, Julia Wright, Catherine Ryan Hide, and Eugene Linden
19. Matthew Weiss, on behalf of Darlene Marshall
20. VG WORT

Speaking in Favor:

1. The Institute of Intellectual Property & Social Justice, Howard University School of Law
2. Sony Electronics
3. National Federation of the Blind
4. Paul N. Courant, University of Michigan Library
5. Center for Democracy & Technology

Each of the above parties will have only five minutes to make its case. After that, the DOJ speaks, then the parties. Should be quite a hearing!

The amended settlement attempts to address a number of the objections raised regarding antitrust issues, international copyright ownership, pricing, and access to out-of-print and/or orphaned works. It also has provisions for Open Access options for rightsholders, such as the option to put a Creative Commons license on your work. There do not seem to be any amendments to address reader privacy concerns, at least not directly.

No dates for filing objections or a fairness hearing have been set, but the parties have requested the following:

• December 14 – Supplemental Notice commences.
• January 28 – Class member Opt outs are due.
• February 4 – DOJ comment on settlement is due.
• February 11 – Plaintiffs’ motion for final settlement approval is due.
• February 18 – Final fairness hearing occurs.

Update: Judge Chin has granted preliminary approval to the amended settlement and agreed to hold the fairness hearing on February 18, 2010.

Update: The motion has been granted.

It is worth noting that the DOJ brief clearly recognizes the difficulty that the orphan works problem presents to both sides of the equation. On the one hand, the Settlement provides access to many out-of-print works that may, in fact, be orphaned and thus essentially impossible to license without some kind of massive settlement or legislative efforts. This weighs heavily in favor of approval and the pro-access benefits that would flow from it. On the other hand, it is exactly this inaccessibility that raises the class representative concern. How can a group of plaintiffs and their lawyers represent people who are impossible to find? This raises notice concerns and potential objections to approval.

In light of this and other concerns, the DOJ proposes something of a wait-and-see approach to the Settlement. Wait and see what the parties say in response to these concerns and then if they do not go far enough, reject the Settlement and force them to modify it.

There were many filings, most of them well-chronicled here and  here on Prof. James Grimmelmann’s blog. Of particular note for their entry into the debate are:

1) Several groups of European publishers who have now explicitly raised concerns about the impact of the Settlement on the Berne Convention and other international treaty obligations; and

2) Several state Attorneys General who are concerned about the legality of the Book Rights Registry administering any unclaimed funds under the states’ non-profit and charity laws.

It is also worth noting that there have been numerous amici filings in support of the Settlement, most emphasizing the profound benefits it offers in terms of increased access to information and knowledge, especially for historically disadvantaged groups and those with disabilities.

Finally, I should note that I am counsel on the brief for the Privacy Authors and Publishers (including EFF and the ACLU) and thus, this blog post (and the original in the top 10 list) are my own opinions and should not be construed as those of any of my clients in this matter.

• The Authors Guild v. Google, Inc. (S.D.N.Y.).
• The McGraw-Hill Companies, Inc. v. Google, Inc. (S.D.N.Y.).

Background:

Since 2005, Google has digitally scanned over 10,000,000 books from various libraries, indexed them in its search database, and for those books under copyright and not part of its Partner Program, displaying so-called “snippets” of their content – up to three portions each no more than 8-12 lines in length – without permission from the copyright owners. As a result, a group of authors and publishers filed suit, now as a class action, for copyright infringement. Google has responded with several defenses, including the assertion that everything it is doing is a fair use under Section 107 of the Copyright Act.

Last October, the parties announced a proposed settlement of the case. The settlement agreement is over 300 pages and quite complex. It has many supporters as well as critics. Objections to the settlement can be filed up until September 4, 2009. On October 7, 2009, Judge Denny Chin will hold a hearing on whether the proposed settlement is “fair, reasonable, and adequate” to the class members.

What’s at stake:

Initially, the key legal issue at stake was fair use. Google has cleverly designed its book search strategy to follow a line of fair use cases (Sega v. Accolade,¹ Sony v. Connectix,² Kelly v. Arriba Soft,³ Perfect 10 v. Amazon.com⁴ ) that allowed numerous unauthorized reproductions of entire copyrighted works, even for commercial gain, where the purpose of the reproductions was to assist in “information location” activities, i.e., helping increase access to knowledge, as opposed to “aesthetic” or entertainment purposes. Under the first fair use factor, these courts found such a purpose to be “highly transformative” and thus fair.

The authors and publishers, on the other hand, claim that Google infringes their copyrights because as rightsholders, they have a right to license their works for scanning and indexing purposes and thus, under the fourth fair use factor, Google is harming the market value of their works.

Since the proposed settlement was announced, however, a host of other issues have been raised for the court to consider. These include the privacy⁵ of book readers,⁶ the effect on competition in the market for digital books and book access,⁷ and the potential impact on fair use precedent resulting from Google’s settlement payments for its scanning, indexing, and snippet display activities. In particular, there have been strong fears expressed that the GBS settlement could determinatively shape the market for digital delivery of books before that market even gets off the ground. Add in the emergence of Amazon’s Kindle eBook reader and efforts such as the Open Book Project and the European Digital Library Project, these questions loom large. Whether or not such concerns are valid, however, has yet to be proven.

Regardless of whether or not Judge Chin approves the settlement, this case is certainly one to watch. If approved, it will dramatically impact the way books are accessed online and the copyright, competition, and privacy norms associated with such access. If rejected, there is a good chance that there will either be a revised settlement agreement for the court to consider or else a determination of a critical fair use issue affecting the future of copyright digitization efforts in the United States.

Note: Our friend and co-editor, Joseph Gratz, is counsel for Google, Inc. in this case, but took no part in writing this summary.

See also:

• Eric Goldman, Google Book Search Settlement Comments (A Little Late), Technology & Marketing Law Blog (Nov. 27, 2008).
• James Grimmelmann, Principles and Recommendations for the Google Book Search Settlement, The Laboratorium (Nov. 8, 2008).
• Fred von Lohmann, Google Book Search Settlement: A Reader’s Guide, Deeplinks Blog (Oct. 31, 2008).

Footnotes

1. Sega Enters. Ltd. v. Accolade, Inc., 977 F.2d 1510 (9th Cir. 1993).
2. Sony Computer Ent’mt, Inc. v. Connectix Corp., 203 F.3d 596 (9th Cir. 2000).
3. Kelly v. Arriba Soft Corp., 336 F.3d 811 (9th Cir. 2003).
4. Perfect 10, Inc. v. Amazon.com, Inc., 487 F.3d 701 (9th Cir. 2007).
5. CDT, CDT Releases Privacy Recommendations Report for Google Book Service, Center for Democracy and Technology (Jul. 27, 2009).
6. Cory Doctorow, Lethem and EFF on why Google Book Search needs privacy guarantees, Boing Boing (Aug. 12, 2009).
7. Randal C. Picker, The Google Book Search Settlement: A New Orphan-Works Monopoly?, J. of Competition L. & Econ. (forthcoming).