The Sixth Circuit Court of Appeals issued a landmark opinion yesterday in the criminal appeal of U.S. v. Warshak, finding that individuals have a reasonable expectation of privacy in their email and that the Fourth Amendment protects email held by an Internet Service Provider. In other words, “[t]he 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.” United States v. Warshak, et al., No. 08-3997, Slip Op. at 23 (6th Cir. Dec. 14, 2010).
The Appeal arose from Warshak’s 2008 conviction for participation in a scheme with Berkeley Premium Nutraceuticals, Inc., to allegedly defraud customers purchasing an herbal supplement purported to enhance male sexual performance. Warshak appealed his conviction to the Sixth Circuit, arguing that Court had improperly admitted into evidence approximately 27,000 emails that the government had obtained from his Internet Service Provider, NuVox Communications, without a warrant and in violation of his Fourth Amendment rights. The government countered that it relied in good faith on the Stored Communications Act (“SCA”), 18 U.S.C. §§ 2701 et seq., which permits the government to obtain certain electronic communications with a subpoena or a court order and consequently the exclusionary rule should not apply.
In considering whether Warshak’s Constitutional rights were violated, the Sixth Circuit found that given the fundamental similarities between email and traditional forms of communication which receive Fourth Amendment protection, such as telephone calls and letters, it would “defy common sense to afford emails lesser Fourth Amendment protection” and that the mere ability or right of a third-party service provider to access the contents of a communication is not sufficient to extinguish a reasonable expectation of privacy. The Court likened the use of ISPs to the use of a hotel room, where hotel staff may access the room to conduct cleaning or repairs, yet hotel guests have been found to have a reasonable expectation of privacy in their room. Warshak, Slip Op. at 22 (citing United States v. Allen, 106 F.3d 695 (6th Cir. 1997). Further, the Court dismissed the government’s contention that NuVox’s right to access the emails eroded Warshak’s reasonable expectation of privacy. On this point, the court noted that if NuVox had expressed an intention to “audit, inspect, and monitor” its subscribers’ emails in a subscriber agreement, that may have been sufficient to render Warshak’s expectation of privacy unreasonable, but without such practices, his ISP’s ability to access and control its subscribers’ emails was not sufficient to make his expectation of privacy unreasonable. As such, the Court concluded that “the government agents violated the Fourth Amendment when they obtained the contents of Warshak’s emails” without first obtaining a warrant based on probable cause.
The Sixth Circuit then determined that although the government’s search of Warshak’s emails violated the Fourth Amendment, the emails should not have been excluded at trial because the government had relied in good faith upon the SCA. Specifically, it was “not plain or obvious that the SCA was unconstitutional, and it was therefore reasonable for the government to rely upon the SCA in seeking to obtain the contents of Warshak’s emails.”
Warshak attempted to undermine this defense by pointing out ways in which the government violated the SCA itself, and therefore should not have been deemed to have acted in good faith. But the court rejected this effort. First, it found that to the extent that the government failed to give proper user notice after 90 days had expired, those violations were irrelevant to the exclusionary issue of whether the government reasonably relied on the SCA to obtain the contents of Warshak’s emails, because any such violations occurred after the email was in the government’s possession. Second, Warshak argued that the government’s application for an 18 U.S.C. § 2703(d) order used the wrong standard for accessing emails under the SCA, one that conflicted with the Ninth Circuit’s decision in Theofel v. Farey-Jones, 359 F.3d 1066, 1071 (9th Cir. 2004). More specifically, the government requested all emails that had been opened and stored by NuVox in addition to those that were over 180 days old. Here, the Sixth Circuit found that the inclusion of this definition did not negate the government’s good faith, as Ninth Circuit precedent – that opened emails are considered to be in electronic storage — is not binding upon the Sixth Circuit and “the government is not alone in thinking that the Ninth Circuit’s definition of electronic storage is incorrect.” Thus, the court refused to reverse Warshak’s conviction on the grounds that the emails should have been excluded. However, the Court noted that the good faith exception may no longer be available in the future: “after today’s decision, the good faith calculus has changed, and a reasonable officer may no longer assume that the Constitution permits warrantless searches of private emails.” Slip Op. at 24, n.1.
Ultimately, the Sixth Circuit upheld the conviction, but sent the case back to the lower court for a new sentencing based on issues unrelated to the email.
The consequences of this decision may be significant for ISPs who now are forced to consider whether they are going to continue to produce emails that have been stored for 180 days in response to government subpoenas, as the SCA requires, or to demand that the government produce a warrant for all emails, which may cause this issue to be litigated again in other Circuits.
