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: