Privacy & Information Security Law Blog

On December 14, 2010, the United States Court of Appeals for the Sixth Circuit ruled in United States v. Warshak that a “subscriber enjoys a reasonable expectation of privacy in the content of emails” stored, sent or received through a commercial internet service provider (“ISP”).  According to the court, the government must have a search warrant before it can compel a commercial ISP to turn over the contents of a subscriber’s emails.

In 2008, a jury sitting in the Southern District of Ohio convicted defendants Steven Warshak, Harriet Warshak and TCI Media, Inc. of various crimes relating to defrauding customers of Berkeley Premium Nutraceuticals, Inc.  Before trial, Warshak’s motion to exclude thousands of emails that the government obtained from his ISP was denied.  The defendants appealed their convictions, arguing that the government’s warrantless seizure of Warshak’s private emails violated the Fourth Amendment’s prohibition on unreasonable searches and seizures.

The Sixth Circuit concluded that emails deserve Fourth Amendment protection.  Warshak clearly manifested a subjective expectation of privacy, given the “often sensitive and sometimes damning” nature of his emails.  The court then considered whether “society is prepared to recognize such an expectation as reasonable.”  Before engaging in such analysis, the court emphasized two principles: “First, the very fact that information is being passed through a communications network is a paramount Fourth Amendment consideration . . . Second, the Fourth Amendment must keep pace with the inexorable march of technological progress, or its guarantees will wither and perish.”

By analyzing Fourth Amendment safeguards afforded to traditional forms of communications, the court determined that email similarly deserves protection.  The court cited established case law which protects telephone calls and postal mail and held that “[g]iven the fundamental similarities between email and traditional forms of communication, it would defy common sense to afford emails lesser Fourth Amendment protection.”  Because email has become an indispensable part of communication in today’s society, “[i]t 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.”  The court described an ISP as functionally equivalent to a telephone company or post office.  Just as police may not make a clandestine recording of a call or intercept a letter without a warrant, the government must first obtain a warrant before it can compel an ISP to surrender the contents of a subscriber’s emails.

The court rejected the counterargument that the mere ability or right of a third party intermediary to access the communication extinguishes a reasonable expectation of privacy.  Furthermore, it distinguished the Supreme Court’s holding in United States v. Miller, which found that a bank depositor did not have a reasonable expectation of privacy in the contents of bank records, checks and deposit slips.  The court noted that Miller involved “simple business records, as opposed to the potentially unlimited variety of ‘confidential communications’ at issue here.”  However, the court repeatedly acknowledged that a subscriber agreement might, in some cases, be broad enough to defeat a reasonable expectation of privacy.