Business and Technology Law

A recent decision by the United States Court of Appeals Sixth Circuit Court of Appeals prohibited the government from secretly accessing the contents of your e-mails . . . or did it? In Warshak v. United States, the Sixth Circuit affirmed an injunction prohibiting the federal government from using an order under the Stored Communications Act to get the contents of “personal e-mail” held by an ISP unless the government either provides notice and an opportunity to be heard or else makes a fact-specific showing that the account holder maintained no reasonable expectation of privacy “with respect to the ISP.” While the court’s decision specifically only applies to residents of the Southern District of Ohio, the implications of the Warshak decision will no doubt be widespread. But the language in Warshak, in particular the acknowledgement that account holders may easily waive any privacy expectations, is troubling.

Steve Warshak ran a company called Berkeley Premium Nutraceuticals selling things like penis enlargement pills and diet pills. The government began investigating him and his company and obtained court orders under the Stored Communications Act to compel two commercial ISPs to disclose material in Warshak’s e-mail accounts. The Act allows the government to compel disclosure of e-mail contents held by ISPs for more than 180 days using less process than a warrant, and, though the language is unclear, may also allow the government to obtain “opened” e-mail stored less than 180 days through similar methods. Warshak found out about the disclosure of his e-mails by the ISPs and filed a civil suit seeking declaratory and injunctive relief on the grounds that the compelled disclosure of his e-mails violated the Act and the Fourth Amendment. Warshak also sought a preliminary injunction blocking the government from using the Act to compel disclosure of the contents of e-mail with less process than a warrant in all future cases in the Southern District of Ohio. The government later indicted Warshak on 107 counts of wire fraud, bank fraud, money laundering, and assorted other crimes.

At issue in Warshak v. United States was 18 U.S.C § 2703, which tells the government by what means it can access user records, subscriber information, and content of electronic messages. More specifically at issue was whether the government could get access to Warshak’s e-mail content under this provision without giving him prior notice. The court made it clear that a constitutional right may be violated when the government obtains the contents of your e-mails without providing notice.

In an age where millions of Americans are under constant video surveillance, our credit card activity is tracked, our personal information is for sale to millions of marketing companies, and GPS systems are ubiquitous, it was almost shocking that the Sixth Circuit found that Warshak had a “reasonable expectation of privacy” in the content of his e-mails. In its lengthy opinion, the court compared the contents of e-mails to the contents of written letters, phone conversations, and safety deposit boxes at banks. With each of these items, we have a reasonable expectation that our “intermediary service provider” (such as the US Postal Service, AT&T, and the local bank), does NOT examine the contents of our conversations, our letters, and our safes merely because they COULD have access in emergency situations. Further, the court noted that postal workers do not read the contents of our mail in the normal course of business.

The Sixth Circuit made a point to examine Warshak’s agreement with his commercial ISP and assess whether this agreement could amount to a waiver of that reasonable expectation of privacy of the e-mail’s contents with respect to the provider. The court recognized that when a user agreement specifically provides that e-mails will be monitored or audited, the user’s knowledge of this fact may well extinguish any reasonable expectation of privacy. In the absence of such statement, “the service provider’s control over the files and ability to access them under certain limited circumstances will not be enough to overcome an expectation of privacy . . ..” Warshak’s agreement with his ISP allowed access only in limited circumstances, “rather than wholesale inspection, auditing, or monitoring of e-mails.” The court further pronounced that “for now, the government has made no showing that e-mail content is regularly accessed by ISPs, or that users are aware of such access to content.” The court went on to indicate that “if the government can show, based on specific facts, that an e-mail account holder has waived his expectation of privacy vis-à-vis the ISP, compelled disclosure of e-mails through notice to the ISP ALONE would be appropriate.”

This begs the question: Have you read your agreement with your Internet Service Provider? Or, rather, did you merely bypass the scroll bar and click “AGREE”? Was there any language allowing the ISP to audit, monitor, or inspect your e-mails? If so, you may have already waived your expectation of privacy, and this big win against Big Brother no longer applies to you.

Full Opinion text – http://www.ca6.uscourts.gov/opinions.pdf/07a0225p-06.pdf