The 4th Amendment in your inbox

By Ethan Ackerman

While the 4th Amendment gets litigated more often than, say, the 10th Amendment, it is still rare when a court finds federal law unconstitutional for inadequately protecting a 4th Amendment interest in email’s privacy.

Earlier this week, the 6th Circuit in Warshak v. US did just that. Largely agreeing with amici briefs filed by law professors and the Electronic Frontier Foundation, the 6th Circuit ruled that “A [government] seizure of e-mails from an ISP, without either a warrant supported by probable cause, notice to the account holder to render the intrusion the functional equivalent of a subpoena, or a showing that the user maintained no expectation of privacy in the e-mail, amounts to” a 4th Amendment violation – notwithstanding the statutory language.

The case arose out of a wire/mail fraud investigation into Warshak’s personal and business activities. Federal agents obtained an order issued under the Stored Communications Act (SCA) directing Warshak’s ISP to produce account information and email contents. Importantly, the order found (as the SCA required) that there were “reasonable grounds to believe” the emails were “relevant to a criminal investigation.” The order was not, however, a full “probable cause” warrant.

Warshak learned of this surveillance one year later when he received the SCA-required notice letter (270 days after the SCA required it to be sent) saying his emails had been searched. Warshak promptly requested that the government stop searching his email without a warrant or notice, but the government declined to commit to stopping. As a result, Warshak sued, alleging that warrantless searches of email violated his 4th Amendment rights. The District Court and 6th Circuit largely agreed.

Having concluded that the government had mostly complied with the SCA in its searches, both the District Court and the Sixth Circuit nevertheless insisted on a 4th Amendment analysis. They had little trouble concluding that people “maintain a reasonable expectation of privacy in e-mails that are stored with, or sent or received through, a commercial ISP.” This is a “well duh” conclusion to most Internet users, but interestingly, relatively few Courts of Appeal have made this Constitutional analysis. Why? It’s not due to courts’ laziness or aversion to Constitutional holdings, but it reflects that the federal statutes for the most part actually track Constitutional protections. So, arguably, this case reflects a rare circumstance where government searching complied with statutory law, but not the 4th Amendment.

Because the SCA protects some emails, most email cases never reach the 4th Amendment; a case can be decided based on the statute. (This is easier said than done in practice, as the SCA is a dense, detailed and specific statute.) For example, in a recent high-profile example, US v. Councilman, the 4th Amendment was effectively invisible. However, lurking in these cases is whether the 4th Amendment protection requires more than the statutory protections – especially as amendments (like the Patriot Act) have pared back the protections or standards in these statutes.

For more on the court’s actual 4th Amendment analysis, read the opinion or this summary. In short, the court had to resolve whether the applicable data was (1) the type routinely disclosed to 3rd parties, in which case there was no ‘reasonable expectation of privacy’ and a subpoena was sufficient authorization, or (2) the contents of communications fully protected by the 4th Amendment, which requires the government to obtain a probable cause warrant. It concluded the data was the latter.

From this (wholly unbiased, disinterested, dispassionate – honest!) viewer’s opinion, this case highlights the weakness of having statutory provisions attempt to protect Constitutional rights. Here, the relevant provisions were produced by political compromise, not an effort to implement the 4th Amendment. The Court of Appeals opinion subtly acknowledges this in its discussion of the Supreme Court’s Berger case, pointing out that early wiretap statutes had the exact same inadequate “reasonable grounds to believe” standard that forced the Berger court to similarly overrule those statutes. It’s always nice to see a rigorous analysis from an actual user’s perspective.

ERIC’S ADDITIONAL COMMENT: Among other things, this case is a sobering reminder of how government actors sometimes zealously pursue their objectives without regard for appropriate safeguards. The Sixth Circuit’s opinion is bristling with hostility towards the government’s post hoc attempts to justify its behavior. In this respect, we’re lucky that the judiciary “has our back,” but it’s still chilling–and sad–to consider the efforts Warshak had to go through to get very basic and rather obvious protections.

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