6th Circuit Rules Warrantless Email Collection under the Stored Communications Act Unconstitutional

By Mehmet Munur

The 6^th Circuit Court of Appeals ruled on December 14^th that the defendant had a reasonable expectation of privacy in his email stored by his Internet Service Provider and that the government violated his 4^th Amendment rights by conducting warrantless searches of his email. However, due to the government’s good faith reliance on the Stored Communications Act, the emails did not have to be excluded in a trial against him. The case highlights the need to modernize the Electronic Communications Privacy Act, which includes the Stored Communications Act at issue.

Steven Warshak owned and operated small businesses that sold Enzyte, an herbal supplement. His companies had annual sales of $250 million and featured a media campaign that included television ads for Smiling Bob. However, the company also used an auto-ship feature that continued to send the customer products until the customer cancelled the subscription, which resulted in 1,500 complaints to the Better Business Bureau. The companies also concocted plans to bury the disclosure regarding the auto-ship feature. As a result, the companies ran into chargeback issues and had a merchant account terminated at one point. This led to schemes to decrease the percentage of chargebacks by splitting transactions into two, and then into three, and even creating bogus transactions on Warshak’s personal credit cards to balance out the chargebacks.

To build the case against him, the government obtained nearly 27,000 emails from Warshak's ISP without a warrant but relied on the SCA, which permits a governmental entity to compel an ISP to disclose the contents of electronic communications. Over a year after they obtained the emails, the government notified Warshak about the access to his email, as required under the SCA. Thus, Warshak obtained an injunction against the collection of his email in the future. Meanwhile, a grand jury in the Southern District of Ohio returned a 112-count indictment against Warshak and co-defendants on charges of mail, wire, and bank fraud, and money laundering, amongst other crimes. After a trial based on the emails and other evidence, Warshak was sentenced to 25 years imprisonment and ordered to surrender nearly half a billion in proceeds.

During his first visit, in 2007, the Circuit Court reviewed the injunction issued by the district court “enjoin[ing] additional seizures of e-mails from an ISP account of any resident of the Southern District of Ohio without notice to the account holder and an opportunity for a hearing.” Initially, the 6^th Circuit slightly modified this injunction, but an en banc panel, in 2008, reviewed this decision and vacated it on ripeness grounds. This latest 6^th Circuit opinion is Warshak’s third visit and ripeness is not an issue because he has already been convicted. Moreover, two members of this most recent panel were part of the en banc panel that had vacated the 2007 decision, which suggests a similar result in the event of an en banc review.

On this latest visit to the 6^th Circuit, Warshak, once again, argued that the government’s seizure of his private emails from his ISP constituted a violation of the 4^th Amendment prohibition on unreadable searches and seizures. The Circuit Court first analyzed Warshak’s subjective expectation of privacy and easily found it to be satisfied in the case. The Circuit Court then turned to whether society is willing to recognize Warshak’s expectation of privacy in his email as reasonable. The court noted that “[s]ince the advent of email, the telephone call and the letter have waned in importance, and an explosion of Internet-based communication has taken place. People are now able to send sensitive and intimate information, instantaneously, to friends, family, and colleagues half a world away.” After reviewing Supreme Court precedent relating to communication by phone and letter, the court then stated that “[i]f 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.”

The Circuit Court then addressed the government’s argument that Warshak’s agreement with his ISP reserved a right to access Warshak’s email. However, the Circuit Court countered that neither the ability of someone to intercept the communication nor the right of access diminished the reasonableness of the user’s expectation of privacy. Electronic Frontier Foundation’s amicus brief proved useful for this part of the opinion as it pointed out that even telephone companies have similar provisions in their agreements with their subscribers. Nevertheless, the Circuit Court also stated that an ISP’s “intention to ‘audit, inspect, and monitor’ its subscribers’ email . . . might be enough to render an expectation of privacy unreasonable.” Nevertheless, the court held 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.

Despite this unconstitutionality, the government relied in good faith on the SCA while obtaining Warshak’s emails. Therefore, the Circuit Court upheld the trial court’s refusal to exclude the evidence against him. As a result, at least in the 6^th Circuit, the government should not be able to rely in good faith on the SCA to obtain emails without warrants in the future.

The SCA has been under criticism for some time. Earlier this year, Digital Due Process Coalition, issued principles regarding the need to update the ECPA, which includes the SCA at issue in this case. It is no surprise that companies such as Microsoft, Google, AT & T, Facebook, and others are increasingly concerned with compliance with this aging legislation. A judicial solution may provide a much needed, but narrow, remedy to re-introduce the constitutional protections to electronic communications. However, a legislative solution would likely be more efficient as it would resolve other issues pertaining to location information, which is a natural part of mobile phone internet access, and private Facebook messages, which are not all that different from emails. Therefore, this holding should reinvigorate the debate concerning updates to ECPA that would better adapt constitutional protections to changing technologies, allow businesses to comply more efficiently with the law without losing consumer confidence, and still provide law enforcement with the capabilities to monitor communications while staying within the boundaries of the protections of the Constitution.

The case is US v. Warshak, Nos. 08-3997/4085/4087/4212/4429; 09-3176, (6th Cir., Dec. 14, 2010), available at http://www.ca6.uscourts.gov/opinions.pdf/10a0377p-06.pdf.