The Sixth Circuit en banc has reversed a Sixth Circuit panel decision, Warshak v. United States, 490 F.3d 455 (6th Cir. 2007), in which the Warshak Panel held that the government’s attempt to compel disclosure of communications kept in electronic storage for more than 180 days without a search warrant or prior notice violated the Fourth Amendment. Warshak v. United States, 2008 WL 2698177 (6th Cir. July 11, 2008).

The en banc court concluded that the question presented was unripe and, consequently, left unresolved the issue of whether the Fourth Amendment renders unconstitutional the provisions of the Stored Communications Act (SCA) that provide for compelled production of stored communications without a warrant or prior notice to the user. 

Under § 2703(d) of the SCA, a court may issue an order for compelled disclosure of certain communications based on “specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing investigation.” 18 U.S.C. § 2703(d). Required prior notice of the disclosure may be delayed under certain circumstances. Id. §§ 2705(a)-(b).

Relying on these provisions of the SCA, the government requested that a magistrate judge issue orders to compel certain ISPs (NuVox Communications and Yahoo!) to produce account information related to Steven Warshak, a target of a government investigation. The requested information included “[t]he contents of wire or electronic communications (not in electronic storage unless greater than 181 days old) that were placed or stored in directories or files owned or controlled by Warshak.”

The magistrate granted the government’s request after concluding that the government had demonstrated “reasonable grounds to believe that the records or other information sought [were] relevant and material to an ongoing criminal investigation,” and that the prior notice requirement could be avoided because notice “would seriously jeopardize the investigation.”

A year later, the government gave Warshak notice of the orders issued to the ISPs. In response, Warshak filed a complaint against the government and sought a preliminary injunction, in which he alleged that § 2703(d) violated the Fourth Amendment because the searches were based on a showing of less than probable cause and were not supported by a warrant.

The U.S. District Court for the Southern District of Ohio granted Warshak’s motion for a preliminary injunction finding that Warshak was likely to succeed on his Fourth Amendment claim. That court concluded that Internet users have a reasonable expectation of privacy in e-mails, and that the magistrate’s orders authorized warrantless searches on less than probable cause.

The district court also found that Warshak faced imminent harm in light of the magistrate’s prior orders and the government’s refusal to not seek additional orders in the future. The Warshak Panel affirmed the lower court’s opinion.

The Sixth Circuit en banc has now vacated the decision stating that, because Warshak now had notice of the previous orders and investigation, the actual question presented was whether the government would conduct another ex parte search of Warshak’s emails. The court held that this issue was unripe because, inter alia, the uncertainty (and indeed, unlikelihood) that the government would conduct such an ex parte search of Warshak’s e-mail account in the future and, even if such a search were to occur, what accounts or types of accounts would be at issue.

The court stated that this uncertainty would require it to hypothesize as to how a service provider would respond to a future request for records, as well as speculate as to the terms of that service provider’s agreement with its users. In particular, without knowing the terms of the agreement between the user and the relevant service provider, the appropriate limits on the user’s reasonable expectation of privacy were unknown.

In addition, the Sixth Circuit rejected the assertion that Warshak faced a risk of hardship because the challenged provisions (and their absence of primary conduct regulations) did not require Warshak to do anything to avoid future adverse consequences. Furthermore, the court stated that individuals subject to unreasonable searches and seizures could file a motion to suppress, or a post hoc challenge under other statutes.

The opinion garnered a dissent from five of the judges, who decried the court’s failure to directly answer whether the delayed notification under the SCA is constitutional and characterized the decision as “another step in the ongoing degradation of civil rights” — a statement that likely will be echoed by privacy advocates who have argued in favor of a Fourth Amendment expectation of privacy in the content of e-mail communications.

Ultimately, the Sixth Circuit’s recent decision precluded targets of ex parte government searches from prospectively challenging searches brought under § 2703(d), leaving such challenges to the electronic communications providers, who have immunity from suit under SCA § 2703(e) and may have little incentive to bring such a claim when faced with a government request for access to electronic records.

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For more information about other e-mail privacy cases, please see: readN yr wrker b's txt msgs may gt u N2 ht H20 (June 2008)