I’ve written about law enforcement access to electronic communications, both on this blog and, more extensively, in this Administration of Justice Bulletin. One major issue is how and when law enforcement can obtain a suspect’s email from the suspect’s email provider. There are lots of wrinkles, but broadly, there’s a federal statute called the Stored Communications Act (SCA), 18 U.S.C. § 2701 et seq., which generally has been viewed as governing this question. And the statute, in many cases, allows officers to obtain emails using a simple subpoena, or a court order issued on a showing of “reasonable grounds,” i.e., less than probable cause.
As I observed in the above-referenced Bulletin, there’s room to wonder whether it is constitutional for law enforcement to access an individual’s email without a search warrant issued on probable cause. In other words, one might ask whether the SCA violates the Fourth Amendment. The Sixth Circuit just became the first federal appellate court to answer that question. It did so emphatically, in an interesting case called United States v. Warshak, __ F.3d __ (6th Cir. 2010).
The defendant ran the company that sold Enzyte, a “nutraceutical” claimed to enhance penis size and sexual performance. He was convicted of many federal crimes; the essence of the prosecution was that the defendant defrauded his customers to the tune of $250 million per year. Although completely irrelevant to the legal issue presented in this post, I can’t resist highlighting a few of the facts of the scam. (1) Advertising for the product “cited a 2001 independent customer study, which purported to show that, over a three-month period, 100 English-speaking men who took Enzyte experienced a 12 to 31% increase in the size of their penises.” But there was no study; an employee of the company “plucked the numbers out of the air.” (2) Likewise, claims of a “96% customer satisfaction rating . . . [were] totally spurious” and entirely fabricated. (3) The assertion that the product “was developed by Dr. Fredrick Thomkins, a physician with a biology degree from Stanford and Dr. Michael Moore, a leading urologist from Harvard . . . [and] that the doctors had collaborated for thirteen years” was also, um, not supported by the facts; the universities in question confirmed that neither “physician” existed. (4) Surprisingly, some customers were not satisfied with the product and requested refunds. Company policy was to make this “as difficult as possible.” Indeed, “[a]t one point, Enzyte customers seeking a refund were told they needed to obtain a notarized document indicating that they had experienced ‘no size increase.'”
Several issues were raised on appeal, but the one that is relevant for present purposes concerns investigators’ use of the SCA to obtain the defendant’s emails from his ISP. Pursuant to 18 U.S.C. § 2703, the government used a subpoena to obtain some of the emails, and an ex parte court order to obtain others. The defendant moved to suppress the emails prior to trial, arguing that he had a reasonable expectation of privacy in them; that they were protected by the Fourth Amendment; and that the government should not have been able to obtain them without a search warrant based on probable cause. The motion was denied by the district court.
The Sixth Circuit, holding that “the Fourth Amendment must keep pace with the inexorable march of technological progress, or its guarantees will wither and perish,” ruled that email must be protected just as much as traditional mail. And notwithstanding the fact that physical letters are entrusted to an intermediary – i.e., the post office – they are the subject of a reasonable expectation of privacy and may not be intercepted without a warrant:
[T]he 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. 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.
Slip Op. at 20 (internal citations omitted). The court rejected the government’s argument that the defendant’s emails were not private because the ISP’s subscriber agreement allowed it to access the emails under certain circumstances, noting by analogy that a cleaning person’s right to enter a hotel room occasionally doesn’t defeat a guest’s expectation of privacy. (The court did suggest, however, that an unusually sweeping right of access in a subscriber agreement might be viewed differently.) The court also distinguished United States v. Miller, 425 U.S. 435 (1976) (holding that a bank depositor does not have a reasonable expectation of privacy in the contents of bank records, checks, and deposit slips), because (1) it viewed the contents of email as more private than “simple business records,” and (2) an ISP, unlike a bank, is an intermediary, not the intended recipient of the communication. The court concluded:
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.
Slip Op. at 23. Nonetheless, the court ruled that the defendant’s motion to suppress was properly denied, holding that the officers’ reliance on the provisions of the SCA was in good faith. The SCA was not “so conspicuously unconstitutional” that the officers should have doubted its validity. Applying the exclusionary rule in this circumstance, therefore, would serve no purpose.
The Electronic Frontier Foundation, which filed an amicus brief in the case, likes the decision. Leading commentator Orin Kerr thinks it is “quite persuasive and likely to be an influential decision going forward.” I suspect that the Department of Justice views the matter differently, but I couldn’t locate any public statement on the matter. A critical but as yet unanswered question is how ISPs located outside the Sixth Circuit — which is to say, most ISPs — will respond to government requests under the SCA after Warshak. Likewise, it will be interesting to see whether Warshak prompts Congress to revise the SCA. It’s starting to look like I may need to revise my Bulletin, in any event, as changes in this area of the law continue to pile up.