Federal Court Decision Significantly Expands Email Privacy

Q Boyer
CINCINNATI — A ruling issued this month by the 6th U.S. Circuit Court of Appeals in Ohio could dramatically expand the scope of privacy protection for email users, legal experts said.

The 6th Circuit held that the lower court had correctly ruled that email users maintain a reasonable expectation of privacy concerning the content of their email messages, and narrowed the circumstances in which the government can seize the contents of such messages.

The ruling prohibits the government from “seizing the contents of a personal email account maintained by an ISP in the name of any resident of the [jurisdiction of the U.S. District in Cincinnati],” without first providing the account holder with “prior notice and an opportunity to be heard,” or demonstrating that the account holder maintains no expectation of privacy with respect to their ISP.

The case in question, Warshak vs. U.S., stems from a criminal investigation into entrepreneur Steven Warshak and his company, Berkeley Premium Nutraceuticals Inc., whom the federal government investigated for alleged mail and wire fraud, money laundering and other federal offenses starting in March 2005, according to court documents.

In May 2005, the government obtained an order from a U.S. District Judge directing the ISP NuVox Communications to hand over information regarding Warshak’s email account with NuVox, including the contents of his email messages.

At the same time, the ISP was barred from disclosing the order to Warshak, who did not learn of the court’s order until it was unsealed more than a year later, and Warshak was notified of the NuVox order, and a second order that had been issued pertaining to Warshak’s Yahoo email account.

Upon learning of the orders that resulted in his ISPs turning over his email account data, Warshak filed a lawsuit alleging that the compelled disclosure of his emails without a warrant violated both the Stored Communications Act and the 4th Amendment.

While the case involves a number of complex procedural and constitutional issues, the central question is what level of expectation of privacy email users can reasonably maintain.

Although the court acknowledged that any communication that is “shared” does reduce the expectation of privacy, the court reasoned, “the mere fact that a communication is shared with another person does not entirely erode all expectations of privacy, because otherwise eavesdropping would never amount to a search.”

The court conceded that by sharing communications with another party “the speaker or writer assumes the risk that it could be revealed to the government by that person, or obtained through a subpoena directed to that person,” but maintained that the same does not necessarily apply to an “intermediary that merely has the ability to access the information sought by the government.”

Otherwise, the court reasoned, telephone conversations would never be protected, because such conversations can be accessed by the phone companies and letters would never be protected because employees of the U.S. Postal Service could easily access those.

“It is apparent, therefore, that although the government can compel disclosure of a shared communication from the party with whom it was shared, it can only compel disclosure of the specific information to which the subject of its compulsion has been granted access,” the court stated in its ruling. “It cannot, on the other hand, bootstrap an intermediary’s limited access to one part of the communication [e.g. the phone number] to allow it access to another part [the content of the conversation].”

Attorney Jeffrey Douglas, chairman of the Free Speech Coalition, told XBIZ that the ruling represents “a very important step towards rebalancing the rights of an individual in a free society against the insatiable governmental desire to invade the privacy of the individual.”

Another legal expert, Professor Orin Kerr of the George Washington University Law School, concurred that the ruling was significant, commenting in recent blog posts on Volokh.com that the decision was “astonishing on a number of fronts.” Kerr also stated, however, that some aspects of the decision are clearly wrong.

Kerr, an expert on 4th Amendment law, said that if the decision stands, “it will revolutionize the way that 4th Amendment challenges are brought” and “create the rather surprising result that 4th Amendment protections are actually significantly stronger online than in the physical world.”

According to Kerr, however, the caveat “if it stands” represents a mighty big “if.”

“Whether the panel’s view of the 4th Amendment is right or wrong, Judge [Boyce] Martin had to reach out to decide as much as he did,” Kerr wrote. “In so doing, he had to make some procedural moves that strike me as pretty obviously wrong.”

Indeed, Kerr stated that if the government petitions a rehearing from the full 6th Circuit (an “en banc” review), he would write a brief encouraging the en banc court to grant the petition.

“If the 6th Circuit en banc corrects the procedural errors, all of the panel’s substantive 4th Amendment holdings will go away,” Kerr wrote.

Douglas said that, as a general rule and regardless of whether the 6th Circuit’s decision stands, people should not assume that any form of stored communication to which they have access is truly “private.”

“People should never regard the material they have access to as being inaccessible by the government,” Douglas said. “This administration in particular appears to regard any private action as inherently suspicious, and has demonstrated that it will go to great lengths to intrude on the private lives of citizens.”