6th Circuit Affirms Expectation of Privacy in E-mail Under SCA

The Sixth Circuit Court of Appeals issued a significant opinion on Monday.  The Court basically held that users have a heightened expectation of privacy in their e-mail.  The government must either acquire a search warrant, provide notice to the target that the government is seeking their e-mail content, or show that the ISP agreement did not give the subscriber any expectation of privacy in their e-mail.

The case is Warshak v. United States, (No. -6-4092, 6th Cir., June 18, 2007).  Warshak was under lengthy investigation by the United States for mail and wire fraud, money laundering, and related federal offenses.  The government obtained an order (issued in March, 2005)  requiring NuVox Communications to turn over various types of information pertaining to Warshak, including “[t]he contents of wire or electronic communications (not in electronic storage unless greater than 181 days old) that were placed or stored in directories or files owned or controlled” by Warshak; and (3) “[a]ll Log files and backup tapes.”  The authority for the order was 18 USC § 2703, part of the Stored Communications Act. 

The order was issued under seal.  The ISP was prohibited from disclosing the existence of the order and what information it provided to the government until the Court directed.  The SCA provision required notice to the target, though the Court delayed that disclosure for 90 days.  The government obtained a second order on September 12, 2005 requiring Yahoo to provide the same kind of information.  The government did not tell Warshak about the orders until May 31, 2006.  "Warshak filed suit on on June 12, 2006 seeking declaratory and injunctive relief  and alleging that the compelled disclosure of his e-mails without a warrant violated the Fourth Amendment and the SCA." (Slip Op. at 2.)  The District Court granted relief and the government appealed.

The Court analyzed procedural issues raised by the government, such as whether the claim was ripe for adjudication, and whether the harm to defendant was imminent, and rejected those claims.  The government also claimed that the content of the e-mail was not private as it was in the hands of the ISP, and employees could view its content in in the normal course of business.  The Court rejected that view.  It said that merely because the ISP employees could view e-mail content, that did not mean that the ISP regularly reviewed content.  Therefore, Warshak had an expectation of privacy in e-mail content.

The government argued that ISPs scan email for illegal pornography or viruses and that destroys the expectation of privacy.  the Court rejected that claim as well, stating that process was handled by technology rather than humans "and has little bearing on his expectation of privacy in the content."  (Slip Op. at 13.)

ABC News analyzes the decision here, and the 20 page opinion can be found here.