Electronic Discovery Law
Court Holds there is a Reasonable Expectation of Privacy in the Contents of Emails
United States v. Warshak, 631 F.3d 266 (6th Cir. Dec. 2010)
In this lengthy opinion, the court considered the question of whether an account holder has an expectation of privacy as to the contents of his emails. Answering in the affirmative, the court held that “a subscriber enjoys a reasonable expectation privacy in the contents of his emails ‘that are stored with, or sent or received through, a commercial ISP’” and that “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.”
Defendant Warshak was convicted of a number of crimes related to his company's sales and accounting practices. During its investigation of Warshak, the government compelled the preservation and ultimately the production of emails from an internet service provider with which he maintained an account. This was accomplished, in large part, by serving a subpoena for the emails’ production pursuant to the Stored Communications Act, which “permits a ‘governmental entity’ to compel a service provider to disclose the contents of [electronic] communications in certain circumstances.” On appeal of his conviction, Warshak asserted that the disclosure, absent a warrant, violated his Fourth Amendment rights.
The court’s analysis, too lengthy and detailed to comprehensively summarize, focused in large part on the historical protections of the Fourth Amendment as applied to more “traditional forms of communication”, i.e. telephone calls and letters. As to both, there is a reasonable expectation of privacy such that a warrant is required to intercept them. Like email, both telephone calls and letters are open to access by a third party. It has been established, however, that a person may nonetheless maintain their expectation of privacy and that a warrant is therefore required to conduct a search.
If 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. An ISP is the intermediary that makes email communication possible. Emails must pass through an ISP's servers to reach their intended recipient. Thus, the ISP is the functional equivalent of a post office or a telephone company. As we have discussed above, the 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. See Jacobsen, 466 U.S. at 114; Katz, 389 U.S. at 353. 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.
Having found that subscribers have a reasonable expectation of privacy “in the contents of emails ‘that are stored with, or sent or received through, a commercial ISP,’” the court further held that “to the extent the SCA purports to permit the government to obtain such emails warrantlessly, the SCA is unconstitutional.”
The court nonetheless declined to apply the exclusionary rule to the improperly obtained emails where the government relied in good-faith on the provisions of the Stored Communications Act. The court noted, however, that “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.”
Among other things, the court’s opinion also addressed Warshak’s assertions that the government’s production of “titanic amounts” of electronic discovery in unsearchable and disorganized formats and its failure to “supplement the discovery material with indices” was “prejudicial to the preparation of an adequate defense.” The court rejected these arguments on several grounds, including that because the “overwhelming majority of discovery” was taken from Warshak’s company’s computers, “the defendants had ready access to that information . . . ‘as they were kept in the usual course of business.’” The court also noted that Federal Rule of Criminal Procedure 16 is “entirely silent on the issue of the form that discovery must take.”
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