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Legal Update

Sixth Circuit Court of Appeals Affirms Individual’s Reasonable Expectation of Privacy in Email Communications; Portions of the Stored Communications Act Deemed Unconstitutional

1 February 2011
Mayer Brown Legal Update

According to a recent Sixth Circuit Court of Appeals decision, government agents may not compel an Internet Service Provider (ISP) to turn over the content of emails that are “stored with, or sent or received through,” a commercial ISP’s systems unless the government first obtains a warrant based on probable cause.1 In so ruling, the Sixth Circuit declared portions of the Stored Communications Act (SCA) unconstitutional to the extent that the SCA enabled the government to obtain email content without a warrant.2 The opinion may have a substantial impact on how corporate entities respond to government requests for email and how corporations apply federal and state individual privacy laws to their business practices.

In Warshak, government prosecutors charged TCI Media, Inc. (TCI) and several of its employees in a 112-count indictment relating to the sale and promotion of Enzyte, a male enhancement tablet. The defendants faced charges including money laundering, obstruction of justice and mail, wire and bank fraud. As part of its investigation into TCI’s and its employees’ activities, the government obtained the emails of Steven Warshak, owner and operator of TCI, from Warshak’s ISP and requested that the ISP prospectively preserve the contents of any emails sent to or from his account.3

The SCA, passed by Congress in 1986, allows the government to compel a service provider to preserve or disclose the contents of an email in certain circumstances. The law affords varying levels of privacy protection for emails based on the type of entity holding the email and how long the email has been in storage. Under Section 2703(f), “a provider of a wire of electronic communication services or a remote computing service, upon the request of a governmental entity, shall take all necessary steps to preserve records or other evidence in its possession pending the issuance of a court order or other process.” Further, the SCA provides that the government may compel the release of an email held by an electronic communication provider for more than 180 days or a remote computing service with a warrant, an administrative subpoena or a Section 2703(d) court order.4

In Warshak, the government used Section 2703(f) to direct the ISP to prospectively preserve emails that had not yet been sent from or received by Warshak’s account. The government also elected to obtain Warshak’s emails through use of an administrative subpoena and a 2703(d) court order, which has lower standards than that of a warrant, requiring a government entity only offer “specific and articulable facts” that show “reasonable grounds” that the emails are “relevant … to an ongoing criminal investigation.”5

In making its ruling, the Sixth Circuit extended the Fourth Amendment principles governing searches of tangible mail to electronic mail. The Fourth Amendment protects an individual from unreasonable searches by the government that violates a person’s reasonable expectation of privacy. Such a search occurs if: (i) the individual is able to show a subjective expectation of privacy in the searched materials and (ii) society is willing to recognize that expectation as reasonable. The court was quick to find that Warshak expected his personal emails to remain private from government search.

Next, the Warshak court held that society recognizes as reasonable an individual’s expectation of privacy in personal emails that are stored on or pass through an ISP. The court based this conclusion on what it described as the widespread use of email to convey sensitive and intimate information, noting two “bedrock principles”: (i) “the very fact that information is being passed through a communications network is a paramount Fourth Amendment consideration” and (ii) “the Fourth Amendment must keep pace with the inexorable march of technological progress, or its guarantees will wither and perish.”6 The court held that electronic mail merited comparable privacy protection as is usually afforded written mail and telephone calls and, thus, that the government may only compel an ISP to surrender the contents of a subscriber’s email with a warrant supported by probable cause.

Ultimately, the Sixth Circuit did not upend Warshaw’s conviction because the government relied in good-faith on the provisions of the SCA. However, considering the Sixth Circuit’s holding, it is unlikely that courts will declare the government’s future reliance on the SCA to defend a warrantless search of emails as “good faith.”

An open issue remains regarding the government’s use of the Section 2703(f) order to request that the ISP prospectively preserve emails. Warshak argued that the government exceeded its authority under Section 2703(f) by requesting that the ISP engage in prospective preservation of future email, rather than retrospective preservation of emails already in the ISP’s possession. The Sixth Circuit found the question irrelevant, as the actual Fourth Amendment violation at issue was obtaining the emails and, therefore, only the government’s reliance on the provisions of the SCA permitting it to obtain the emails was relevant to the immediate question.

In his concurring opinion, Judge Keith expressed deep concern over the government’s use of Section 2703(f) to request the prospective preservation of emails without a warrant, stating that “[t]he government cannot use email collection as a means to monitor citizens without a warrant anymore than they can tap a telephone line to monitor citizens without a warrant.”7

In light of this evolving standard, any business that receives and processes such requests from the government may need to revisit its Law Enforcement Request-Compliance Program and balance the program with federal and state individual privacy laws.

For more information about the Warshak opinion, or any other matter raised in this Legal Update, please contact at +1 212 506 2275, at +1 212 506 2312 or at +1 202 263 3437.

Learn more about our Electronic Discovery & Records Management, White Collar Defense & Compliance or Privacy & Security practices.

  1. United States v. Warshak, --- F.3d ---, 2010 WL 5071766 (6th Cir. 2010).
  2. See, 18 U.S.C. §§ 2510(15); 2510(17); 2711(2); 2703(a); 2703(b); 2703(d) (together, enabling the government to obtain, without a warrant, the content of certain emails).
  3. §2703(f)
  4. §§2703(a), (b)
  5. § 2703(d)
  6. Warshak, 2010 WL 5071766 at *10.
  7. Id. at 2010 WL 5071766, at *58 (Keith, J., concurring)

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