Sixth Circuit Rules Email Is Protected By The Fourth Amendment

The Sixth Circuit issued the most extraordinary opinion yesterday, U.S. v. Warshak.  It is, apparently, the first case to declare that email, and the people who use it (virtually everybody, except teens) have a reasonable expectation of privacy in its contents.  The government, therefore, must obtain a warrant under probable cause to have an ISP turn over the communications to it. 

Warshak was the guy in charge of several companies that sold a product called Enzyte.  Anyone who watched late night cable television over the last several years should remember a series of commercials featuring a character called Smilin' Bob.  Bob was smiling because Enzyte allegedly enhanced his sexual performance.  Tawdry and cheap the commercials were, but they sold a ton of the product.  The problem was that Enzyte did not live up to its claims.  The opinion is replete with incidents that document the fraud.  The FTC investigated, and Warshak did everything he could to stonewall the investigation.  Warshak and associates were ultimately convicted on a number of charges, including mail and wire fraud, money laundering, and conspiracy to obstruct the FTC's investigation. 

Some of the evidence against Warshak included some 27,000 emails sent through an ISP called NuVox.  Government agents used the authority of the Stored Communications Act (SCA) to issue an ex parte order to the company to preserve Warshak's email.  NuVox complied with the preservation request and about a year's worth of correspondence was duly turned over to investigators via subpoena.  Warshak raised several objections to the use of this as evidence on appeal.

The Court gave a lengthy analysis of the history of communications and the Fourth Amendment, starting with Katz (telephone privacy) through Kyllo (technology affecting privacy).  The Court's analysis concerned the expectation of privacy to the various forms of communication, both from a societal and legal perspective.  Email, it said, is the direct descendant of telephone and letters, for as these means declined, email has ascended as the medium of choice.  The same privacy considerations, therefore, apply to email and trigger the Fourth Amendment warrant requirement:

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.” Warshak I, 490 F.3d at 473; see Forrester, 512 F.3d at 511 (suggesting that “[t]he contents [of email messages] may deserve Fourth Amendment protection”). 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.

The Court, nonetheless, allowed the use of the evidence as federal agents acquired the emails in good faith reliance of the SCA.  The Court noted:

“[t]he Stored Communications Act has been in existence since 1986 and to our knowledge has not been the subject of any successful Fourth Amendment challenges, in any context, whether to § 2703(d) or to any other provision.” 532 F.3d at 531. Furthermore, given the complicated thicket of issues that we were required to navigate when passing on the constitutionality of the SCA, 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.

Further language turned away specific challenges to the application of Fourth Amendment juriprudence to the SCA.

The Electronic Frontier Foundation is ecstatic over the decision, as the Court agreed with the analysis it presented in an amicus brief.  The decision will likely be appealed to the Supreme Court by both sides.  Warshak will want his Fourth Amendment rights vindicated and the government will seek to preserve the SCA.  Let the legal filings go forth.  The opinion is available through this link:  Download Warshak_opinion_121410.  [MG]