July 29, 2007 By Wallin & Klarich

A recent opinion by the United States Court of Appeals for the Sixth Circuit recently addressed this issue.

Warshack v. United States (6th Cir. Dkt. 06-4092, 6/18/2007).

In this case, the US government was investigating Mr. Warshack for suspected mail and wire fraud, money laundering, and other federal crimes and they wanted to obtain Mr. Warshack’s stored e-mails from his internet service provider.

Typically, before government investigators can obtain personal information from a person, they are required, by the Fourth Amendment to the US Constitution, to obtain a search warrant from a judge. A judge is only permitted to issue a search warrant when the government can demonstrate “probable cause” to believe that what the government wants to search will reveal evidence of a crime. In 1986, however, Congress passed the “Stored Communications Act” (18 U.

S.C. §§ 2701-2712) (SCA). The SCA outlines how the government may go about obtaining “electronic communications” (such as e-mails) in a “remote storage service” (such as an internet service provider (ISP) e-mail account). The SCA gives the government the option of either obtaining a search warrant, or obtaining a court order for disclosure of the communications. The government does not have to demonstrate “probable cause” to obtain a court order (they can obtain a court order based on less than “probable cause”), but they must give the holder of the account notice of their intent to obtain the order and an opportunity to appear in court and oppose the disclosure of the records to the government. Like much else in the law, there is an exception to the rule requiring advance notice to the account holder. This exception allows the government to delay giving notice to the account holder where the government shows that, if notice is given, the account holder might destroy evidence, or physically harm or kill another person or flee or otherwise jeopardize the government’s investigation of the case. The SCA allows the government to delay giving notice for 90 days, with the ability to seek extensions if required.

Turning to the case of Mr. Warshack, the government elected not to obtain a search warrant for his e-mails, but instead obtained a court order under the SCA, and the order provided that Mr. Warshack was not to be notified for 90 days. More than one year later, government lawyers wrote to Mr. Warshack and informed him of the fact that they had seized his e-mails. Mr. Warshack filed a civil lawsuit against the government, alleging that the government violated his rights under the Fourth Amendment to the US Constitution and the provisions of the SCA. The trial court determined that the SCA allows the government to, essentially, do an end-run around the Fourth Amendment because it allows the government to obtain e-mails without having to show “probable cause,” as required by the Fourth Amendment, and without having to give notice to the account holder so that the account holder could go to court and explain to the court why the e-mails should not be turned over to the government. The trial court therefore ordered that the government may no longer seize stored e-mails under the SCA unless they obtain a search warrant based upon “probable cause” or unless they seek a court order under the SCA AND give the account holder advance notice and a chance to appear in court and oppose the government’s request for the order. The trial court seemed to reason that, if the government obtains a warrant, the Fourth Amendment requirements are satisfied, and, if the government seeks a court order on less than probable cause, fairness dictates that the account holder be given advance warning of the government’s intentions and an opportunity to appear in court and oppose the government’s actions before the government acts.

Naturally, the government was displeased with the outcome in the trial court, and they appealed the trial court’s ruling to the US Court of Appeals for the Sixth Circuit in Cincinnati, Ohio (the trial took place in the US District Court in the Southern District of Ohio). In dealing with the question presented here, the Court of Appeals centered its analysis on the question of whether a person has a “reasonable expectation of privacy” in an e-mail account, since, if the accounts were not “private” the Fourth Amendment’s warrant requirement would not apply. The Court discussed prior cases that ruled that items such as bank records, phone records, and credit card statements were not “private” because they were available to numerous employees of the bank, credit card company, or phone company in the “ordinary course of business.” The Court found that those cases were not similar to the situation presented here, and that this case was more similar to the issues presented in cases that dealt with the government’s ability to read mail or listen in on a telephone conversation. The Court noted that the US Supreme Court has recognized in prior cases that people have a “reasonable expectation of privacy” in conducting telephone calls and in sending letters in the mail that the US Postal Service. Put simply, reasonable people do not believe that the phone company is listening to their calls in the “ordinary course of business” or that the Postal Service routinely opens and reads mail it delivers. The Court also pointed out that prior courts have ruled that people have a “reasonable expectation of privacy” in safe deposit boxes at a bank where the bank does not have access to the box. The Court found that, unless the user specifically agreed that his or her e-mails could be monitored (such as in a situation where a person has an e-mail account at his or her job and agrees that the boss can read the employees’ e-mails), e-mails are items that people try to preserve as private and, therefore, they have a “reasonable expectation of privacy” in e-mails. The Court of Appeals therefore agreed with the trial court’s order, with one modification. The Court of Appeals stated that the government must either obtain a warrant for e-mails, or a court order after giving the account holder notice and an opportunity to appear in court to oppose the order UNLESS the account holder had no reason to expect that his or her e-mails would be private, in which case, the government would not be required to notify the account holder or give him or her a chance to appear in court to oppose the order.

What does all this mean? Initially, it should be stressed that, for now, this ruling only applies in the territorial jurisdiction of the Sixth Circuit Court of Appeals, which means the states of Michigan, Ohio, Kentucky, and Tennessee, although undoubtedly, this ruling will be reviewed carefully in other courts faced with similar issues, but a court in another jurisdiction might not agree with the Sixth Circuit Court’s analysis. Also, anyone concerned with the privacy of his or her e-mail communications (especially e-mails stored at one’s ISP) must review the major exceptions to the Court’s ruling in this case.

One major exception to this rule is where a person has no “expectation of privacy” with his or her internet service provider. Thus, when you sign on with a specific ISP, or get one of those “free” Hotmail or Yahoo! accounts, and you agree to their 100 page disclosure and waiver agreement in tiny print, did the agreement state that the ISP employees could read e-mails you send and receive in the ordinary course of business? If you get your e-mail at work, did you sign a statement that said your boss could read your e-mail without telling you? The agreement that Mr. Warshack signed said that the ISP would provide e-mails to law enforcement authorities when required by law, and the Court found that this agreement was not sufficient to base a finding that Mr. Warshack gave up his privacy rights. What about the agreement YOU signed with YOUR ISP?

Another major point you must consider is that the Court was only dealing with the issue of what the government must do to force your ISP to hand over your e-mails. The Court stated that if the person that Mr. Warshack sent the e-mails to agreed to simply give the e-mails to the government, then Mr. Warshack would be out of luck. What this means is that, when you send out an e-mail, you have to assume that the person on the other end is ready, willing and able to turn over that e-mail to the police (or that police officers are listening in on any telephone calls between you and another person, or that any letters you send to another person will be given to the police, and that the contents of any in person conversation, etc). When you are conversing with a friend or family member, are you certain that this person is not acting as an informant for the police? Police will often get a suspect’s friend, associate, or family member to call the suspect (with the police listening in on and recording the call) in order to try to get the suspect to admit partaking in some criminal act. This is a popular tactic for the police to use in cases involving child molestation, where the alleged victim will contact the suspect on the phone with the police listening in and recording the call, and tell the suspect how hurt they are because the suspect molested the victim, whereupon the suspect will often tearfully apologize to the alleged victim for molesting the victim – not knowing that the alleged victim is working with the police, who are recording the call. Such evidence is often very powerful evidence and can make a weak case for the prosecution a very strong one. Probably one of the best pieces of advice on this point was given by former mobster Sammy “The Bull” Gravano, who once advised that you should “[n]ever open your mouth, unless you’re in a dentist’s chair.” (As you might know, Mr. Gravano went against this advice when he decided to testify against his former crime boss. Mr. Gravano’s testimony, during which he confessed to committing 19 murders during his career in the mob, resulted in his boss receiving a sentence of life without parole in a federal prison. Mr. Gravano, in exchange for his cooperation, received a five year prison sentence, which equals out to about 3 months in custody for each person he killed. I guess what he meant to say was that you should never open your mouth, unless you’re in a dentist’s chair, or unless you get a windfall from prosecutors in exchange for opening your mouth).

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