The Sixth Circuit Court of Appeals last week dismissed on procedural grounds a case involving the constitutionality of warrantless no-notice searches of e-mail messages stored by an ISP.
In doing so, the court left unanswered the question of whether the Fourth Amendment requires the U.S. government to obtain warrants based on reasonable cause before it can compel e-mail service providers to secretly turn over a person’s e-mail records.
The case involves an Ohioman, Steven Warshak, who in February was convicted by a jury on 93 counts of mail and wire fraud, money laundering and other federal offenses. Warshak ran a Cincinnati-based company called Berkeley Premium Nutraceuticals Inc., which marketed, distributed and sold herbal supplements. The conviction followed an FBI probe that began in 2005, when Warshak’s company was suspected of making false and misleading advertising claims, misrepresentation and various other fraudulent practices.
As part of the probe into the company’s activities, the FBI compelled NuVox Communications and Yahoo! — Warshak’s ISPs – to turn over all of the contents, log files and back-up data related to his e-mails — including those that had been stored for more than 181 days. The statute allowing the government to see Warshak’s e-mails — and the rationale provided by the government — required investigators to inform Warshak about its action within 90 days.
But the government didn’t notify Warshak about its behind the scenes efforts for nearly a year after it first sought the e-mail information.
Warshak filed suit in June 2006, seeking declaratory and injunctive relief, claiming that the forced disclosure of his e-mails violated his Fourth Amendment rights. He also argued that the government’s failure to tell him what it was doing violated the Stored Communications Act, the statute used to obtain his records. When his lawyers failed to get an assurance from the government that it wouldn’t continue such searches in future, Warshak asked for a preliminary injunction prohibiting the practice.
An Ohio District Court granted the preliminary injunction, noting that e-mails held by an ISP “were roughly analogous to sealed letters, in which the sender maintains an expectation of privacy.” That court also agreed to enjoin additional seizures of e-mails from an ISP account for any resident of the Southern District of Ohio without notice to the account holder.
When prosecutors appealed the decision, a three-judge panel at the Sixth Circuit Court initially upheld the preliminary injunction, saying it was needed to protect the Fourth Amendment rights of Warshak and others who might be in his position. But the full Sixth Circuit court overturned that decision last week, formally lifting the preliminary injunction that had been in place since June 2006. The most recent decision, however, did not touch upon the issue of the government’s right to conduct warrantless, secret – searches.
Writing for the majority, Judge Jeffrey Sutton said the case was not fit for judicial review because the court has no idea whether the government plans to conduct warrantless searches of Warshak’s e-mail in future. He said Warshak’s complaint was based on “contingent future events” that might not occur. “Answering difficult legal questions before they arise and before the courts know how they will arise is not the way we typically handle constitutional litigation,” he wrote.
Circuit Judge Martin Boyce, who wrote for the five dissenting judges in the case, said that the government’s failure to tell Warshak about the searches after the 90-day period expired was a clear violation of the Stored Communication Act that the majority on the court had overlooked. The ruling gives “unwarranted deferential treatment to the government,” Boyce said. “It is but another step in the ongoing degradation of civil rights in the courts of this country,” he noted in his dissent.
The ruling was greeted with dismay by the Electronic Frontier Foundation (EFF), one of several civil rights groups that had filed a friend-of-the-court brief supporting Warshak. In a post on its Web site, Kevin Bankston — who drafted the group’s brief — said the court’s refusal to address the Fourth Amendment issue was a “shame”.
“Without clear legal rulings on such issues, we face continued uncertainty about how the Constitution protects our private Internet communications, uncertainty that the government will continue to exploit,” Bankston wrote.
The EFF in its brief had earlier argued that e-mail is used in myriad ways to communicate everything from family photos and personal thoughts to health information and corporate data. The varied uses demonstrate society’s expectations that e-mail sent and received over the Internet is as “private as a sealed letter, a telephone call, or even papers that are kept in the home.” As such, secret, warrantless searches of e-mail violates the Fourth Amendment.
“It is an important decision because it vacates a case that had established strong Fourth Amendment protections for e-mails,” said Gregory Nojeim, director of freedom, security and technology at the Center for Democracy and Technology (CDT), a Washington, D.C. rights group that participated with EFF in the friend-of-the-court brief.
Fourth Amendment protections related to stored e-mail generally require the government to notify an individual of an e-mail search — unless a probably cause warrant for the search was granted. With its ruling last week, “the court did not say that e-mail isn’t protected by the Fourth Amendment,” Nojeim said. “It just said the case was not yet ready for court review.”
The ruling means Internet users need to pay attention to the terms of service they agree to when signing up with an e-mail provider, he said. The degree to which a person allows information to be shared with law enforcement officials can have a legal impact later.
Nojeim pointed to several examples of the differences in terms of service offered by various providers that were cited in the Sixth Circuit’s majority opinion. For example, some agreements might say that a service provider will not read or disclose a subscriber’s email to anyone except authorized users; another might say that it “will not intentionally disclose” e-mail except as required by law; a third might say that the provider will not intentionally monitor private e-mail messages, while reserving the right to do so.
