U.S. v. Warshak: The Constitutionality of Search and Seizure of E-Mails

On December 14, 2010, the Sixth Circuit held that a search warrant is required before the government can engage in search and seizure of emails stored by an internet service provider (ISP).

The government directed—without a warrant for probable cause—an ISP, NuVox, to “preserve” all Steven Warshak’s future emails without Warshak’s knowledge.  NuVox secretly archived months’ worth of Warshak’s emails. In January 2005, under the Stored Communications Act (SCA), enacted in 1986 as part of the Electronic Communications Privacy Act, 18 U.S.C. § 2701-2712, the government subpoenaed NuVox to obtain Warshak’s emails. Similarly, the government sought more emails in May of that year under 18 U.S.C. § 2703(d). In total, NuVox disclosed 27,740 of Warshak’s “preserved” emails.  Steven and Harriet Warshak were convicted for mail, wire and bank fraud, defrauding consumers, and money laundering activity related to an herbal supplement “auto-ship” business that Steven owned and operated. United States v. Warshak (PDF) at 9, 12.

The Sixth Circuit reasoned that if email is analogous to telephone or email, the government cannot compel disclosure without Fourth Amendment concern. Warshak at 20. The Fourth Amendment provides: “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause . . . .” Its fundamental purpose is “to safeguard the privacy and security of individuals against arbitrary invasions by government officials.” Camara v. Mun. Ct., 387 U.S. 523, 528 (1967).  The Warshak court found as a matter of “common sense” that there is a reasonable expectation of privacy in stored email equivalent to that of phone calls and postal mail. Email plays a “vital role” in citizens’ professional and personal lives even when passed through an intermediary accessible to the public. See Katz v. United States, 389 U.S. 347 (1967).

However, as noted by the Electronic Frontier Foundation (EFF), this “decision is the only federal appellate decision currently on the books that squarely rules on this critically important privacy issue.” In an amicus brief, the EFF argued that the

government blatantly exceeded the scope of the SCA and violated the Wiretap Act, 18 U.S.C. §§ 2510-2522, by secretly compelling NuVox to prospectively “preserve” Warshak’s emails, emails that the government later obtained improperly and without a probable cause warrant using the SCA’s procedures. Put simply, the government misused the SCA to conduct a “back door wiretap” of Warshak’s emails and bypass the Wiretap Act’s strict requirements, including its requirement of probable cause.

The first EFF arguments, substantially similar to those in the criminal trial, were put forward in the civil suit regarding Warshak in 2006, though that case was vacated on procedural grounds.

The government pointed to the contractual arrangement between Warshak and his NuVox that purported to reserve to the ISP the right to access Warshak’s emails.  However, the Court reasoned that, “[a]s an initial matter, it must be observed that the mere ability of a third-party intermediary to access the contents of a communication cannot be sufficient to extinguish a reasonable expectation of privacy.” Warshak at 21.

Though many of the convictions regarding the criminal activity stand because the court held the government’s demand relied on the SCA in good faith, this case represents an important declaration of the reach and effectiveness of the Fourth Amendment because the court found “that the government did violate Warshak’s Fourth Amendment rights by compelling his [ISP] to turn over the contents of his emails.” Warshak at 14.