June 14, 2011
Doug Plank, Senior Attorney, National Legal Research Group
Most people undoubtedly assume that their personal e-mail correspondence is a private matter between them and the recipients of the correspondence and that when they send an e-mail to a particular person, that e-mail carries an expectation of privacy such that it will be protected from disclosure to the Government. However, the scope of an individual's right to privacy with regard to his e-mail account is far from settled, as the U.S. Supreme Court has specifically declined to decide whether an individual's electronic messages are within the scope of Fourth Amendment protection, and the lower courts have taken different approaches in addressing the scope of e-mail privacy.
In City of Ontario v. Quon, 130 S. Ct. 2619 (2010), a civil rights action brought under 42 U.S.C. § 1983, the Supreme Court reversed a Ninth Circuit decision that had held that a police officer had a reasonable expectation of privacy in personal text messages he had sent to a third party, using a pager that had been issued to him for work use, and, further, that the officer's employer could be liable for damages for its violation of that privacy right because it had obtained the text messages from the wireless communications provider without a search warrant. Stating that "[t]he judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear," id. at 2629, the Court declined to rule on the Fourth Amendment issue but instead concluded that even if the officer did have a right to privacy in the text messages, his employer had not violated the Fourth Amendment in reviewing those text messages to and from a Government‑owned pager, because its review was reasonable and motivated by a legitimate work‑related purpose. [For a discussion of Quon in the Employment Law context, see John Buckley, Employment Law: Workplace Computers and Other Devices, www.nlrg.com/employment-law-legal-research (posted Jan. 21, 2011).]
Subsequently, in Rehberg v. Paulk, 611 F.3d 828 (11th Cir. 2010), the Eleventh Circuit declined to resolve the issue of whether e-mails are protected by the Fourth Amendment, also choosing to decide the case on an alternative ground. Rehberg was a civil rights action brought by a citizen whose e-mails had been obtained by law enforcement officers from the citizen's Internet service provider ("ISP") and examined without a warrant. The Eleventh Circuit noted that at the time of the officers' conduct, no court decision had held a Government agent liable for Fourth Amendment violations related to e-mail content received by a third party and stored on a third party's server, and thus it held that the officers were entitled to qualified immunity under the doctrine announced in Harlow v. Fitzgerald, 457 U.S. 800 (1982).
More recently, the Sixth Circuit became the first court to squarely hold that a person's e-mails are private and protected by the Fourth Amendment, even after they have been sent to a recipient. In United States v. Warshak, 631 F.3d 266 (6th Cir. 2010), the issue reached the court after the defendant had been charged and convicted of fraud in connection with the operation of several of his businesses. In the course of the Government's investigation of the defendant, it had subpoenaed the defendant's ISP to obtain the content of e-mails sent and received by him. These e-mails contained incriminating evidence of the defendant's criminal culpability and were used at trial to convict him.
The court in Warshak found that the defendant clearly had an expectation that his e-mails would remain private and free from governmental scrutiny, and further determined that this expectation was one that society would consider to be reasonable. The court stated:
Since the advent of email, the telephone call and the letter have waned in importance, and an explosion of Internet‑based communication has taken place. People are now able to send sensitive and intimate information, instantaneously, to friends, family, and colleagues half a world away. Lovers exchange sweet nothings, and businessmen swap ambitious plans, all with the click of a mouse button. Commerce has also taken hold in email. Online purchases are often documented in email accounts, and email is frequently used to remind patients and clients of imminent appointments. In short, "account" is an apt word for the conglomeration of stored messages that comprises an email account, as it provides an account of its owner's life. By obtaining access to someone's email, government agents gain the ability to peer deeply into his activities.
Id. at 284.
The court then reviewed various other types of communications, such as telephone calls and letters, and found that e-mail was fundamentally similar to those more traditional forms of communication. Because of these similarities, the court found, "it would defy common sense to afford e-mails lesser Fourth Amendment protection." Id. at 285-86. The court further found that
[e]mail is the technological scion of tangible mail, and it plays an indispensable part in the Information Age. Over the last decade, email has become "so pervasive that some persons may consider [it] to be [an] essential means or necessary instrument[ ] for self‑expression, even self‑identification." Quon, 130 S.Ct. at 2630. It follows that email requires strong protection under the Fourth Amendment; otherwise, the Fourth Amendment would prove an ineffective guardian of private communication, an essential purpose it has long been recognized to serve.
Id. at 286 (first alteration added).
Because an e-mail is analogous to a letter or a telephone call, the court concluded, it is clear that Government officers cannot compel an ISP to turn over the contents of an e-mail account without triggering the application of the Fourth Amendment. The court likened the ISP to the postal service or the telephone company and pointed out that it is well established that those entities cannot be compelled to turn over customers' messages to law enforcement officials absent a warrant. "It only stands to reason," the court stated, "that if government agents compel an ISP to surrender the contents of a subscriber's e-mails, those agents have thereby conducted a Fourth Amendment search, which necessitates compliance with the warrant requirement absent some exception." Id.
Finally, the court in Warshak noted that even though the ISP may have contracted to permit it to access e-mail accounts, this did not defeat a reasonable expectation of privacy in the accounts, in view of the fact that in Katz v. United States, 389 U.S. 347 (1967), the seminal case that recognized the right of privacy in a telephone conversation, the Supreme Court found it reasonable to expect privacy during a telephone call despite the ability of an operator to listen in and despite the fact that the telephone companies had an announced policy that allowed them to listen in to a conversation when reasonably necessary to "protect themselves and their properties against the improper and illegal use of their facilities." 631 F.3d at 287. The court also analogized to hotel rooms, in which guests certainly have an expectation of privacy, while at the same time maids routinely enter to clean. Id.
Despite its holding with regard to the expectation of privacy in an e-mail account, the ultimate holding in Warshak was to find that the examination of the e-mails was excused by the good-faith exception to the exclusionary rule because the officers had had a right to rely upon a provision in the Stored Communications Act, 18 U.S.C. § 2703, which allowed law enforcement officers to obtain stored records of an electronic communications service on a showing that the records were relevant and material to an ongoing criminal investigation. The court further held that provision now to be unenforceable because it was unconstitutional.
The Sixth's Circuit's ruling in Warshak that individuals have a protected privacy interest in their stored e-mails is controlling only in the courts within the Sixth Circuit. However, it seems likely that the ruling will lead police officers in other jurisdictions to obtain a warrant before attempting to access e-mails in connection with an investigation, if for no other reason than that Warshak puts officers on notice that they can no longer rely upon the Stored Communications Act in arguing for the application of the good-faith exception to the exclusionary rule. Warshak also puts ISPs on notice that they will have to act carefully in response to a Government request for access and will have to insist on a warrant that justifies the request, despite the language in the Stored Communications Act.
