A recent decision by the Court of Appeals for the Sixth Circuit involving warrantless searches and seizures and commercial Internet Service Providers (“ISPs”) has expanded the degree of privacy e-mail users should expect with regard to their e-mail messages. In Warshak v. United States, the federal government initiated a criminal investigation of Steven Warshak and obtained a court order under the Stored Communications Act (“SCA”) to compel two commercial ISPs to disclose the contents of his e-mail accounts. Another court order, issued under the SCA, permitted the government to delay notifying Warshak about the e-mail disclosures for 90 days. When Warshak learned of the disclosures a year later, he fi led suit, alleging that the compelled disclosure of his e-mails without a warrant violated both the SCA and the Fourth Amendment.
The Sixth Circuit emphasized that e-mail users have a “reasonable expectation of privacy in the content of their e-mails.” Modifying the injunctive order issued by the district court, the court held that the government did not have the right to access and view e-mails stored by a commercial ISP without either: (1) obtaining a search warrant under the Fourth Amendment based on probable cause; (2) providing the account holder with prior notice and an opportunity to be heard; or (3) making a fact-specifi c showing that the account holder had no expectation of privacy regarding the ISP.
In addition to upholding an injunction against the government, the Sixth Circuit concluded that the portion of the SCA allowing e-mail disclosure with delayed notice to the account holder violated the Fourth Amendment. For this reason, the court enjoined that particular unconstitutional section of the statute involving delayed notice. Ultimately, by asserting that account holders have an expectation of privacy in their e-mails, the Sixth Circuit has limited the government’s access to private e-mails stored by ISPs.
This likely means that companies’ e-mail management systems may become the target of further subpoenas and litigation inquiries. The most defensible and proven way to mitigate the risks associated with e-mail usage in the business environment is to implement an e-mail management policy that leverages an archiving system to capture, retain and, when permitted by law, dispose of business records constituting e-mails. Such policies will ease the burden on computer servers and reduce the volume of information reviewed in eDiscovery. Coupled with the privacy consideration and last year’s adoption of the eDiscovery amendments to the Federal Rules of Civil Procedure, the time to confront these issues is now.