6th Circuit fails to note conflicting 11th Circuit ruling; Leaves open possible loss of privacy rights via 'national security' allegations, fine print of ISP 'user agreements'...
By Ernest A. Canning on 12/19/2010, 12:44pm PT  

Guest blogged by Ernest A. Canning

The government may not access your private emails without a warrant, says the US Sixth Circuit Court of Appeal.

In a landmark Dec. 14, 2010 opinion, United States vs. Warshak [PDF] an appellate court invalidated provisions of the 1986 Stored Communications Act to the extent that the Act permitted the government, without a warrant, in violation of the Fourth Amendment right against unreasonable search and seizure without probable cause, to obtain electronic communications from an ISP (Internet Service Provider), stating [emphasis added]:

Since the advent of email, the telephone call and the letter have waned in importance...People are now able to send sensitive and intimate information, instantaneously…half a world away….By obtaining access to someone’s email, government agents gain the ability to peer deeply into his activities...The Fourth Amendment must keep pace with the inexorable march of technological progress, or its guarantees will whither and perish.

Civil libertarians have cause to celebrate the Sixth Circuit's ruling this week, as well as an earlier Third Circuit decision [PDF], reaffirmed [PDF] this week, finding that a federal magistrate has the right to make a factual determination whether the government is required to get a court warrant to obtain cell-site information that mobile-phone carriers retain on their customers.

However, an assertion made by the Electronic Frontier Foundation (EFF), which had filed an amicus curiae (friend of the court) brief, applauding the Warshak decision as "the only federal appellate decision currently on the books that squarely rules on this critically important privacy issue" is not entirely accurate. Moreover, concerns remain as to the scope of the Fourth Amendment protection that will be afforded by the Warshak decision...

In the Warshak case, the Sixth Circuit Court of Appeal cited cases that provided Fourth Amendment protections to both mail and the telephone, and reasoned that an ISP was but an intermediary, like the post office or a telephone company. The court reasoned that it would “defy common sense” to afford emails lesser protection than is required calls through the phone company, or letters delivered by the post office.

It is important to note, however, that Warshak arose within the context of an ordinary criminal prosecution. The Warshaks and their company, TCI, Inc., were convicted on multiple counts essentially entailing fraudulent business practices in relation to their marketing, sale and distribution of Enzyte, touted as a drug that supposedly enhances the size of a penis.

As the case did not involve issues of national security, it is not entirely clear how the same Fourth Amendment argument would fare before the courts when the government raises concerns about "terrorism," as is now frequently the case.

No doubt, EFF would argue that Fourth Amendment protections would apply irrespective of the context. Perhaps, but it nevertheless remains a concern, especially since the method employed in Warshak entails what James Bamford referred to as a "retail form of eavesdropping" --- a targeting of specified emails at an individual ISP. As Bamford, an expert on NSA methodology, observed:

The NSA…does it wholesale, where they take entire streams of communications coming down from satellites, which can contain millions of communications…[and then] filter the information through very quick computers that are loaded with names of people, words that they’re looking for….One listening post in the central part of England…[can] intercept two million pieces of communications an hour….Emails, faxes, telephone calls, cellular calls….Senator Frank Church, back in the mid-70s, when he was conducting his investigation of NSA, said that if the NSA’s technology were ever turned on the American public, there would be no place to hide.

No Place to Hide

Bamford's observation, it seems, underscores the court's central premise that the "Fourth Amendment must keep pace with the inexorable march of technological progress, or its guarantees will whither and perish" --- especially as NSA's technology has, in fact, been "turned on the American public."

Although the court, in Warshak, held this week that "a subscriber enjoys a reasonable expectation of privacy in the content of emails 'that are stored with, or sent and received through, a commercial ISP'" and that "the government may not compel a commercial ISP to turn over the contents of a subscriber’s emails without first obtaining a warrant based on probable cause," it also cautioned the devil may in the details, or in this case, the fine print --- the "subscriber agreement":

A subscriber agreement might, in some cases, be sweeping enough to defeat a reasonable expectation of privacy in the contents of an email account…[but] 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…[I]f the ISP expresses an intention to ‘audit, inspect and monitor’ its subscriber emails, that might be enough to render an expectation of privacy unreasonable.

Query: Does this mean that internet users will have to scour the content of their ISP agreements in order to insure that the Fourth Amendment right to privacy is not lost?

Contrary to EFF's assertion, Warshak does not reflect the first instance in which the question of whether the Fourth Amendment protects emails from governmental intrusions when it seeks records from an ISP without a warrant.

In a March 11, 2010 decision, Rehberg v. Polk [PDF] --- a civil claim for malicious prosecution and conspiracy to violate civil rights made by the author of several anonymous faxes sent to a hospital --- the Eleventh Circuit Court of Appeal held that a former District Attorney did not violate Rehberg's Fourth Amendment rights when he obtained Rehberg's emails from his ISP pursuant to a subpoena, stating:

A person…loses a reasonable expectation of privacy in emails, at least after the email is sent and received by a third party….Rehberg…alleges [the DA and special prosecutor] subpoenaed the records from the third-party Internet service provider to which Rehberg transmitted the messages. Lacking a valid expectation of privacy in that email, Rehberg fails to state a Fourth Amendment violation….

While Warshak appears to be the better reasoned opinion, and one bright spot of late in a series of recent disturbing court decisions, the issue of the expectation of privacy in electronic communications remains one of unsettled law, particularly with a government which has proven itself willing, and able, to use the argument of "national security" to overcome virtually any legal --- or Constitutional --- objection.

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Ernest A. Canning has been an active member of the California state bar since 1977. Mr. Canning has received both undergraduate and graduate degrees in political science as well as a juris doctor. He is also a Vietnam vet (4th Infantry, Central Highlands 1968).