Us v. Warshak: Will Fourth Amendment Protection Be Delivered to Your Inbox?

• Publication year: 2010

Casey Perry⁰

The Warshak decision is a long-overdue federal case extending Fourth Amendment protection to electronic communications stored with third parties. In holding that citizens have a "reasonable expectation of privacy" for stored e-mail messages, the Sixth Circuit decision represents a shift towards a stricter interpretation of the Fourth Amendment as it applies to modern forms of communication. Applauded by civil liberties and privacy protection groups, Warshak may pave the way for communication over other digital means (e.g., cloud computing, Facebook, LinkedIn) to obtain Fourth Amendment protection, through application of a two-prong test to determine the existence of a reasonable expectation of privacy. Warshak also highlights blatant loopholes in the current federal statutory scheme, underscoring the need for revision of the Stored Communications Act in order to bring the law in line with modern technology.

I. Introduction

There are few concepts as deeply entrenched in American law as individual privacy. The fervent reverence afforded to privacy as a fundamental human right is reflected in our Constitution, particularly in the Bill of Rights.¹ One of the most important safeguards of individual privacy is found in the Fourth Amendment right of the people to be secure "in their persons, houses, papers, and effects, against unreasonable searches and seizures," requiring that warrants be issued only upon a showing of probable cause and specifying "the place to be searched, and the persons or things to be seized."² While the language of the Fourth Amendment makes it clear that the Founders intended to limit the use of searches and seizures to those that are reasonable,³ what constitutes a "reasonable" search and seizure has been extensively debated.⁴

Today, the "reasonable expectation of privacy" test is used to determine whether a search meets the reasonableness requirement, and to define when law enforcement's finding and taking of property is a "seizure" protected by the Fourth Amendment.⁵ As Justice Harlan explained in Katz v. United States, the expectation of privacy test that has emerged is twofold, requiring first, that a person "have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as 'reasonable.'"⁶ Applying this test, courts have found that certain mediums of communication, including the telephone and postal mail, are protected by a reasonable expectation of privacy.⁷ These decisions require law enforcement to obtain a valid warrant based on probable cause before seizing such communications.⁸

Today, as people increasingly turn to digital means of communication in both their private and professional lives, many have called for the expansion of Fourth Amendment protection to incorporate a modern interpretation of an individual's "papers and effects."⁹ Despite this push for the Fourth Amendment to keep pace with evolving technology,¹⁰ there has been little direction from the federal courts regarding the reasonable expectation of privacy for digital communication, including emails. However, on December 14^th , 2010, the Sixth Circuit of Appeals took a critical first step towards defining these issues, addressing the applicability of the Fourth Amendment protection to emails stored with internet service providers ("ISPs")¹¹ in the landmark case of United States v. Warshak.¹²

In Warshak, the Sixth Circuit held that the reasonable expectation of privacy for communication via telephone and postal mail extends to emails stored with third parties, bringing stored emails within the protection of the Fourth Amendment.¹³ As the only federal appellate decision to rule on the privacy of stored emails,¹⁴ Warshak prompts a series of questions, not only about the future of privacy in electronic communications, but also about the efficiency and effectiveness of current federal privacy laws relating to the government's ability to search and seize stored electronic communications.¹⁵

in order to fully understand the Warshak decision and its implications, Part II of this Recent Development will provide a brief explanation of the Stored Communications Act,¹⁶ a federal statute addressing electronic communication privacy critical to the Warshak opinion. Part III will then introduce the Warshak¹⁷ decision itself, including the prior history of the case. Part IV discusses the potential need for Congressional reform of the Stored Communications Act, based on loopholes highlighted by the Warshak investigation. Finally, Part V will look towards the future of the Warshak decision and its implications for the rest of the country, followed by a brief conclusion.

II. The Stored Communications Act

Supplementing the Fourth Amendment, there are three primary federal statutes that serve to protect individuals' privacy in a network environment, collectively known as the Electronic

Communications Privacy Act ("ECPA").¹⁸ The Stored Communications Act, the Wiretap Act, and the Pen Register statute regulate criminal investigators' access to both in-transit electronic communications and stored content, including emails stored with ISPs.¹⁹ The Stored Communications Act, regulating access to stored content, was particularly relevant to the Warshak case and thus requires a brief explanation.

A. The Structure of the Stored Communications Act

Passed in 1986 as part of the Electronic Communications Privacy Act of 1986,²⁰ the Stored Communications Act ("SCA") is a federal statute that regulates access to stored electronic communications.²¹ The SCA regulates retrospective surveillance,²² specifically content that is in storage with an ISP.²³ Two of the principal provisions of the SCA are found in sections 2702 and 2703, which regulate voluntary disclosures and compelled disclosures, respectively.²⁴ In section 2703, the SCA imposes strict rules on when the government may compel service providers to disclose information they are storing on their subscribers.²⁵ The SCA creates similar limits on voluntary disclosures to the government by ISPs in section 2702, heightening the protection provided by the private search doctrine of the Fourth Amendment.²⁶ According to the United States Department of Justice, the SCA serves "to protect and regulate the privacy interests of network users with respect to government . . . and the world at large,"²⁷ yet courts have had a difficult time interpreting and applying the statute, due in no small part to its density and complexity.²⁸

B. Government Access under the SCA

In regulating government access to emails, the SCA offers various levels of protection based on the length of time the email has been stored electronically and the type of service in which the email is held.²⁹ For example, emails stored with an electronic communication service for less than 180 days may be acquired "only pursuant to a warrant."³⁰ Emails stored with a remote computing service and those stored with an electronic communication service for more than 180 days require the government to either obtain a search warrant, an administrative subpoena, or a court order.³¹ Though probable cause is required to obtain a search warrant, the SCA allows subpoenas and court orders to be issued under much lower standards than those of the Fourth Amendment, requiring only that the government entity offer "specific and articulable facts" showing "reasonable grounds" to believe that the contents of the communication "are relevant and material to an ongoing criminal investigation."³²

III. United States v. Warshak

The Warshak case was not one, but a series of cases, both criminal and civil. The Sixth Circuit case at issue stems from Warshak's appeal from his May 2008 conviction by the U.S. District Court for the Southern District of Ohio.³³

A. The Controversial Seizure of Warshak's Emails

The Warshak case arose out of a criminal investigation involving Stephen Warshak, his mother Harriet,³⁴ and the management of his mail-order nutritional supplements business, Berkeley Premium Nutraceuticals, Inc. ("Berkeley").³⁵ From all accounts, Warshak ran a shady business centered around the sale of its flagship product, the infamous Enzyte male enhancement supplement.³⁶ In addition to the now infamous "Smilin' Bob" commercials,³⁷ Berkeley's advertising techniques for Enzyte included a bogus independent customer study,³⁸ a spurious customer satisfaction rating,³⁹ and the lauding of impressive but fictitious doctors that supposedly developed the drug.⁴⁰ Berkeley employed the use of a continuity or negative-option auto-ship program to distribute their products,⁴¹ but customers were neither given notification of their enrollment nor required to authorize the additional charges.⁴² Customers that attempted to obtain a refund were forced to deal with Berkeley's refund policy to "make it as difficult as possible."⁴³ Additionally, Berkeley scammed their credit-card processors and the merchant banks from which they obtained their lines of credit by falsifying applications⁴⁴ and using elaborate ploys to keep Berkeley's chargeback ratio⁴⁵ artificially low. Eventually, these questionable practices led to the September 2006 grand jury indictment of Warshak, Harriet, and others on a combined 112 counts, including conspiracy to commit mail, wire, and bank fraud; mail fraud; bank fraud; making false statements to banks; money laundering; misbranding; and conspiracy to obstruct a Federal Trade Commission ("FTC") proceeding.⁴⁶

In the process of obtaining evidence to support these charges, government agents became interested in emails stored with Warshak's ISP, NuVox.⁴⁷ In October 2004, operating under section 2703(f) of the SCA,⁴⁸ the government formally requested that NuVox preserve all of Warshak's future incoming and outgoing emails.⁴⁹ In subsequent months, NuVox preserved copies of approximately 27,000 of Warshak's emails without his knowledge or permission, pursuant to the government's...