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No. 06-4092 IN THE…
Tags: bellia, e mail, electronic privacy law, fourth amendment, fulton street, internet law, probable cause, reasonable expectation of privacy, san francisco ca, sixth circuit, southern district of ohio, states district court, steven warshak, table of authorities, united states court, united states court of appeals, united states district, united states district court, university of san francisco, university of san francisco school of law,Pages: 41
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Created: Tue Nov 21 13:13:00 2006
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No. 06-4092
IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
________________________
STEVEN WARSHAK,
Plaintiff-Appellee,
v.
UNITED STATES OF AMERICA,
Defendant-Appellant.
________________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF OHIO AT CINCINNATI
________________________
BRIEF FOR PROFESSORS OF ELECTRONIC PRIVACY LAW AND
INTERNET LAW AS AMICI CURIAE SUPPORTING THE APPELLEE AND
URGING AFFIRMANCE
________________________
PATRICIA L. BELLIA SUSAN FREIWALD
Notre Dame Law School University of San Francisco School of Law
P.O. Box 780 2130 Fulton Street
Notre Dame, IN 46556 San Francisco, CA 94117
(574) 631-3866 (415) 422-6467
(affiliations for identification purposes only)
TABLE OF CONTENTS
TABLE OF AUTHORITIES ................................................................................... iii
INTEREST OF AMICI..............................................................................................1
SUMMARY OF ARGUMENT .................................................................................1
ARGUMENT .............................................................................................................2
I. STORED E-MAIL SURVEILLANCE IS A SEARCH UNDER THE
FOURTH AMENDMENT THAT REQUIRES, AT A MINIMUM, A
WARRANT BASED ON PROBABLE CAUSE ............................................2
A. Users Maintain a Reasonable Expectation of Privacy in Their E-mails,
Whether or Not Those E-mails Have Been Stored or Accessed...........3
1. Warshak had a subjective expectation of privacy in the e-mails
stored with his service providers. ...............................................4
2. Warshak's expectation of privacy in his e-mails was objectively
reasonable....................................................................................5
3. Warshak had a reasonable expectation of privacy in his e-mails
after his service provider stored them and he accessed them. ....7
B. E-mail Users Do Not Forfeit an Expectation of Privacy in their
Communications Merely by Storing Those Communications with a
Service Provider, Even Where the Service Provider Retains a Right of
Access..................................................................................................10
1. Allowing a third party to carry or store an item does not
eliminate any expectation of privacy in that item.....................10
2. Service provider assistance to government agents does not
reduce the government's constitutional obligations. ................15
a. The involvement of a service provider in the
Government's stored e-mail surveillance does not impact
the Government's constitutional obligations..................15
b. Terms of service providing that the government may be
granted access do not affect the constitutional
requirements for stored e-mail surveillance. ..................17
i
c. The fact that service providers can and do screen e-mail
under certain circumstances does not eliminate a user's
expectation of privacy vis-ŕ-vis government agents. .....17
II. GOVERNMENT AGENTS CANNOT EVADE THE FOURTH
AMENDMENT'S WARRANT REQUIREMENT BY COMPELLING
PRODUCTION OF COMMUNICATIONS FROM THIRD-PARTY
SERVICE PROVIDERS ...............................................................................20
A. Use of a "Reasonableness" Test to Evaluate Compelled Production of
Evidence Ordinarily Presumes or Follows a Determination that the
Target of the Investigation Lacks a Reasonable Expectation of Privacy
in the Items Agents Seek. ....................................................................21
B. Administrative Subpoena Cases Are Wholly Inapplicable in This
Case. ....................................................................................................26
CONCLUSION........................................................................................................30
ii
TABLE OF AUTHORITIES
Statutes
18 U.S.C. § 1968......................................................................................................27
18 U.S.C. § 2518(4) .................................................................................................16
18 U.S.C. § 2701......................................................................................................10
18 U.S.C. § 2703......................................................................................................27
18 U.S.C. § 2703(d) .......................................................................................... 27, 29
18 U.S.C. § 2704........................................................................................................9
18 U.S.C. § 2707......................................................................................................16
18 U.S.C. § 3486(a)(1)(A)(i) ...................................................................................27
21 U.S.C. § 876........................................................................................................27
Electronic Communications Privacy Act, Pub. L. No. 99-508, sec. 201, 100 Stat.
1848, 1860 ............................................................................................................10
Cases
Chapman v. United States, 365 U.S. 610 (1961).....................................................14
Couch v. United States, 409 U.S. 322 (1973) ..........................................................11
Ex parte Jackson, 96 U.S. 727 (1877) .....................................................................13
Fisher v. United States, 425 U.S. 392 (1976) ..........................................................25
Hale v. Henkel, 201 U.S. 43, 70 (1906)...................................................................25
Hoffa v. United States, 385 U.S. 293, 302 (1966) ...................................................12
In re Administrative Subpoena John Doe, D.P.M., 253 F.3d 256 (6th Cir. 2001)
...................................................................................................................... passim
In re Subpoena Duces Tecum (United States v. Bailey), 228 F.3d 341 (4th Cir.
2000) ........................................................................................................ 26, 28, 29
iii
Katz v. United States, 389 U.S. 347 (1967) ..................................................... passim
Kyllo v. United States, 533 U.S. 27 (2001)................................................................3
Lopez v. United States, 373 U.S. 427 (1963)...........................................................12
McClelland v. McGrath, 31 F. Supp. 2d 616 (N.D. Ill. 1998) ................................16
Oklahoma Press Publ'g Co. v. Walling, 327 U.S. 186 (1946) ................... 23, 25, 26
Osborn v. United States, 385 U.S. 323 (1966) ........................................................12
SEC v. Jerry T. O'Brien, Inc., 467 U.S. 735 (1984)................................................25
Smith v. Maryland, 442 U.S. 735 (1979) ............................................................ 6, 11
Stoner v. California, 376 U.S. 483 (1964)...............................................................14
United States v. Councilman 418 F.3d 67 (1st Cir. 2005) (en banc).......................18
United States v. Dionisio, 410 U.S. 1 (1973)...........................................................22
United States v. Jacobsen, 466 U.S. 109 (1984)......................................................13
United States v. Johns, 851 F.2d 1131 (9th Cir. 1988)............................................14
United States v. Koyomejian, 970 F.2d 536 (9th Cir.) (en banc), cert. denied, 506
U.S. 1005 (1992) ....................................................................................................7
United States v. Long, 64 M.J. 57 (C.A.A.F. 2006) ................................. 3, 7, 15, 18
United States v. Maxwell, 45 M.J. 406 (C.A.A.F. 1996)................................ 3, 7, 16
United States v. Miller, 425 U.S. 435 (1976) .................................................. passim
United States v. Morton Salt Co., 338 U.S. 632 (1990) ................................... 26, 27
United States v. Palmer, 536 F.2d 1278 (9th Cir. 1976) .........................................25
United States v. Poulsen, 41 F.3d 1330 (9th Cir. 1994) ..........................................14
United States v. Rahme, 813 F.2d 31 (2d Cir. 1987) ...............................................14
United States v. United States Dist. Ct., 407 U.S. 297 (1972) ..................................9
United States v. White, 401 U.S. 745 (1971) (plurality opinion) ............................12
iv
United States v. Young, 350 F.3d 1302 (11th Cir. 2004).........................................19
Wilson v. United States, 221 U.S. 361 (1911) .........................................................23
Other Authorities
Bellia, Patricia L., Surveillance Law Through Cyberlaw's Lens, 72 GEO. WASH. L.
REV. 1375 (2004)..................................................................................................10
Brief for the United States, Warshak v. United States, No. 06-4092 (6th Cir. filed
Oct. 11, 2006) ............................................................................................... passim
Freiwald, Susan, Online Surveillance: Remembering the Lessons of the Wiretap
Act, 56 ALA. L. REV. 9 (2004) ............................................................................5, 7
Plaintiff-Appellee Warshak's Opposition to United States' Motion To Stay
Preliminary Injunction, No. 06-4092 (6th Cir. filed Nov. 2, 2006) ...................4, 8
Solove, Daniel, The First Amendment as Criminal Procedure, 82 N.Y.U. L. REV.
(forthcoming 2007).................................................................................................3
v
INTEREST OF AMICI
Amici are scholars who teach, write about, or have an interest in electronic
privacy law and Internet law. Amici have no stake in the outcome of this case, but
are interested in ensuring that electronic privacy law develops with due regard for
the vital role electronic communications play in our lives. A full list of amici is
appended to the signature page. Both defendant-appellant and plaintiff-appellee
have consented to the filing of this brief.
SUMMARY OF ARGUMENT
Electronic mail ("e-mail') has become an essential medium of
communication and assumed a vital role in our lives. The contents of our e-mail
accounts reveal extensive and detailed information about our interests, our views,
and our actions. Yet, the Government in this case claims the right to obtain the
entirety of our personal e-mail accounts from our service providers, without first
establishing probable cause or providing us notice, so long as we have previously
accessed our e-mails in some way. Acceptance of this radical claim would
dramatically limit judicial oversight of an immensely powerful surveillance tool
and eviscerate the privacy of electronic communications.
Though the Government presents the question as well settled, no federal
courts have addressed government acquisition of e-mail from a service provider
without prior notice ("stored e-mail surveillance"), although two military courts
1
have found that it requires a probable cause warrant.1 More fundamentally, when
the Government argues that a constitutional "reasonableness" standard applies to
stored e-mail surveillance because the applicable statute apparently approves of
subpoena-like authority, it begs the essential question: does stored e-mail
surveillance by the Government on less than probable cause satisfy the Fourth
Amendment? Amici, law professors who write and teach in the areas of electronic
privacy law and Internet law, believe that it does not.
Because it invades a reasonable expectation of privacy, stored e-mail
surveillance constitutes a search under the Fourth Amendment, and may not be
conducted without first obtaining a warrant based on probable cause. "Compelling"
a service provider to produce a person's e-mail does not entitle government agents
to evade that constitutional requirement.
ARGUMENT
I. STORED E-MAIL SURVEILLANCE IS A SEARCH UNDER THE
FOURTH AMENDMENT THAT REQUIRES, AT A MINIMUM, A
WARRANT BASED ON PROBABLE CAUSE
Courts, and not Congress, must determine the threshold issue: how does the
Constitution regulate stored e-mail surveillance? Because government agents
intrude upon users' reasonable expectation of privacy when they acquire private e-
1
Amici do not address what procedural requirements apply when the government
does give the target prior notice.
2
mails, they conduct a search under the Fourth Amendment.2 That expectation of
privacy obtains whether the e-mails acquired are stored or in transit, and whether
or not their recipients have accessed them. Nothing in the private contracts
between users and their internet service providers affects the application of those
constitutional protections.
A. Users Maintain a Reasonable Expectation of Privacy in Their E-
mails, Whether or Not Those E-mails Have Been Stored or
Accessed.
Users maintain a reasonable expectation of privacy in their e-mail, whether
that e-mail is in transit or has come to rest. United States v. Long, 64 M.J. 57
(C.A.A.F. 2006); United States v. Maxwell, 45 M.J. 406 (C.A.A.F. 1996). The
reasonable expectation of privacy test, which is used to determine whether a
particular investigatory technique constitutes a search under the Fourth
Amendment, asks whether target of an investigation entertains an actual
expectation of privacy in the object of the search (subjective prong), and whether
that expectation of privacy is one that society deems reasonable (objective prong).
See Kyllo v. United States, 533 U.S. 27, 32-33 (2001); Katz v. United States, 389
U.S. 347, 361 (1967).
2
The First Amendment also supports imposing significant burdens on law
enforcement access to e-mails, because they are communications. See, e.g.,
Stanley v. Georgia, 394 U.S. 557, 564 (1969) ("It is now well established that the
Constitution protects the right to receive information and ideas."); see also Daniel
Solove, The First Amendment as Criminal Procedure, 82 N.Y.U. L. REV.
(forthcoming 2007).
3
1. Warshak had a subjective expectation of privacy in the e-
mails stored with his service providers.
Warshak's use of his e-mail demonstrates his subjective expectation of
privacy in it. See Plaintiff-Appellee Warshak's Opposition to United States'
Motion To Stay Preliminary Injunction, No. 06-4092, at 11 n.6 (6th Cir. filed Nov.
2, 2006) ("Warshak Stay Opposition"). The subjective prong precludes affording
constitutional protection to those who themselves did not view the object of the
investigation as private. To require that government agents refrain from viewing
information easily seen by others is unfair and unnecessary. It is unfair because
the government should not be disadvantaged vis-ŕ-vis the average member of the
public. It is unnecessary because we assume that before people make information
available to all they have either determined the repercussions to be harmless, or
assumed the risk of those repercussions. The Constitution does not protect
information that one has "knowingly expose[d] to the public," Katz, 389 U.S. at
351.
In this case, there is no evidence that Warshak knowingly exposed the
entirety of his e-mail accounts to the public. Instead, Warshak used the e-mail
accounts the government seized to send e-mails "of a deeply personal nature." See
Warshak Stay Opposition at 4 n.1. As we discuss in Part I.B below, that Warshak
maintained e-mail accounts with service providers did not vitiate his subjective
expectation of privacy.
4
2. Warshak's expectation of privacy in his e-mails was
objectively reasonable.
E-mail has become so indispensable that it must be reasonable for us to
expect that it is private. One who looks at our e-mails obtains a detailed view into
our innermost thoughts; no previous mode of surveillance exposes more. When we
compose private and professional e-mails, embed links to Internet sites in some,
and attach documents, pictures, sound files and videos to others, we rely on the
privacy of the medium. Society does not make us rely at our peril but rather
accepts as reasonable our expectations of privacy in e-mail.
The public reasonably expects e-mail to be private, despite the fact that e-
mail may be vulnerable to surveillance. The Supreme Court found the expectation
of privacy in telephone calls to be reasonable in Katz, despite public awareness of
the vulnerability of those calls to interception. In the years preceding Katz, the
public had learned of rampant illegal wiretapping from numerous influential books,
scholarly articles, and newspaper accounts. See Susan Freiwald, Online
Surveillance: Remembering the Lessons of the Wiretap Act, 56 ALA. L. REV. 9, 38-
39 (2004). In the same period, Congress considered new legislation and convened
numerous hearings and commissioned lengthy expert reports that detailed
communications' vulnerability. Id. at 74-75. The Katz Court nonetheless found
warrantless wiretapping to be unconstitutional, despite the lack of absolute privacy
in telephone calls. See id. at 38. Similarly, a government pronouncement that e-
5
mails are vulnerable may not defeat our reasonable expectations of privacy in it.
See Smith v. Maryland, 442 U.S. 735, 740 n.5 (1979) (recognizing that the
expectation of privacy analysis must be replaced by a normative analysis when
"subjective expectations had been `conditioned' by influences alien to well-
recognized Fourth Amendment freedoms.") Otherwise, the Constitution would be
powerless to prevent executive branch overreaching.
In Katz, the Supreme Court based constitutional protection of telephone calls
on the overriding importance of the telephone system. Katz, 389 U.S. at 352 ("To
read the Constitution more narrowly is to ignore the vital role that the public
telephone has come to play in private communication."). In other words,
whatever people actually thought or knew about the privacy of their telephone
calls, they were entitled to believe in the privacy of telephone calls, because any
other result would be destructive of society's ability to communicate. Id. (holding
that one who places a telephone "call is surely entitled to assume that the words he
utters into the mouthpiece will not be broadcast to the world.").
Because e-mails typically contain much richer data than telephone calls, e-
mail surveillance intrudes much more on personal privacy than does an analogous
wiretap. Although many modern e-mails incorporate other media, even a simple
text e-mail can reveal a lengthy back-and-forth exchange between the parties to the
correspondence. People reveal in their e-mails much more about their political
6
opinions, religious beliefs, personal relationships, intellectual interests, and artistic
endeavors than they ever revealed over the telephone. Stored e-mails, in particular,
contain a vast archive of people's past activities.
Society now relies on e-mail and its powerful features much more than it
relied on the telephone system at the time of Katz. Because of e-mail's vital role in
modern communications, users have a reasonable expectation of privacy it, and
agents must secure at least a probable-cause warrant under the Fourth Amendment
before they obtain it.3
3. Warshak had a reasonable expectation of privacy in his e-
mails after his service provider stored them and he accessed
them.
Stored e-mail should not receive less constitutional protection than e-mail in
transit. United States v. Long, 64 M.J. 57 (C.A.A.F. 2006); United States v.
Maxwell, 45 M.J. 406 (C.A.A.F. 1996). More extensive e-mail correspondence
may be found on a third party's server than may be intercepted. When a
government agent intercepts e-mails in transit, she acquires only the e-mail
3
Several Courts of Appeals imposed the heightened procedural requirements for
wiretapping on silent video surveillance because it was just as intrusive,
continuous, hidden and indiscriminate. See, e.g., United States v. Koyomejian, 970
F.2d 536, 542 (9th Cir.) (en banc), cert. denied, 506 U.S. 1005 (1992) (imposing
the following constitutional requirements in addition to probable cause: particular
description, last resort, limited time, and minimization). Because e-mail
surveillance threatens privacy and risks abuse as much as wiretapping, it too
should be subject to the heightened requirements. See Freiwald, Online
Surveillance.
7
traveling at that moment. The agent must continue the surveillance for so long as
she hopes to track the target's correspondence. To obtain e-mails covering a vast
length of time, it would be far simpler and easier to conduct stored e-mail
surveillance afterwards in a single shot. For example, rather than running an e-
mail wiretap for three months from January 1 to March 31, an agent may obtain the
same electronic communications from the service provider by demanding, on
March 31, prior e-mails going back three months. That the government apparently
obtained thousands of e-mails, both sent and received, from Warshak's service
providers, from accounts over nine years old, starkly illustrates the power and
scope of stored e-mail surveillance. See Warshak Stay Opposition at 2, 11.
By the same token, a user should enjoy full Fourth Amendment protection
for e-mail messages that she has accessed.4 Nothing in the reading of an e-mail (let
alone its being opened) makes the correspondence less private or its acquisition
less intrusive. Users leave copies of their already-read e-mails in their accounts for
many reasons, and almost never out of a lack of concern for the privacy of those e-
mails. In fact, most users delete their least important, least sensitive e-mails, and
retain the others for later use. Users store private e-mails in their accounts because
they do not know how to do otherwise, or because they are not aware that their
4
Amici use the term "accessed" to cover accessed, opened, viewed, and
downloaded e-mail. The Government claims the right to acquire accessed e-mails,
draft e-mails and sent e-mails without a probable cause warrant.
8
service providers maintain copies.5 Many users simply neglect to delete e-mails
until they run out of storage space; that retention does not indicate that users have
knowingly exposed those e-mails to public or law enforcement view. The
government's strained statutory argument should not confuse the fact that a user's
access to his e-mail does not affect its constitutional protection.
Before obtaining disclosure of the contents of an e-mail account stored on a
service provider's computer, the Fourth Amendment requires that government
agents obtain, at a minimum, a probable cause warrant, or that they invoke a proper
exception to the warrant requirement. "The historical judgment, which the Fourth
Amendment accepts, is that unreviewed executive discretion may yield too readily
to pressures to obtain incriminating evidence and overlook potential invasions of
privacy and protected speech." United States v. United States Dist. Ct., 407 U.S.
297, 317 (1972). That stored e-mail surveillance takes place entirely outside of
the reach and knowledge of the target makes it particularly prone to abuse. The
warrant requirement protects e-mails whether in transit or stored, and whether
accessed or not.6
5
Service providers may retain e-mails as a matter of practice or government
compulsion. See 18 U.S.C. § 2704 (compelling backup preservation of electronic
communications).
6
As discussed, a probable cause warrant alone may be constitutionally insufficient.
Supra note 3.
9
B. E-mail Users Do Not Forfeit an Expectation of Privacy in their
Communications Merely by Storing Those Communications with
a Service Provider, Even Where the Service Provider Retains a
Right of Access.
The Government's argument that an e-mail user forfeits any expectation of
privacy and exposes her e-mail to indiscriminate government surveillance when
she relies on a service provider to transmit and store that e-mail ignores a range of
cases in which courts have recognized an expectation of privacy in items held by a
third party. Moreover, it misunderstands the significance to this dispute of the
Stored Communications Act7 and of service providers' policies and practices
regarding access to the communications they store.
1. Allowing a third party to carry or store an item does not
eliminate any expectation of privacy in that item.8
Placing something in the care of a third party does not, without more, make
the government free to acquire it without a warrant. The Government's argument
to the contrary appears to stem from a broad reading of the Supreme Court's
"business records" cases. See Brief for the United States, Warshak v. United
States, No. 06-4092, at 36-40, 43-45 (6th Cir. filed Oct. 11, 2006) ("Government
Brief"). The postKatz v. United States foundation for this line of cases is United
7
Electronic Communications Privacy Act of 1986, Pub. L. No. 99-508, sec. 201,
100 Stat. 1848, 1860 (codified as amended at 18 U.S.C.A. § 2701 et seq.).
8
Portions of this discussion are drawn from Patricia L. Bellia, Surveillance Law
Through Cyberlaw's Lens, 72 GEO. WASH. L. REV. 1375, 1397-1413 (2004).
10
States v. Miller, 425 U.S. 435 (1976),9 where the Supreme Court held that a bank
customer had no reasonable expectation of privacy in financial records held by his
banks, because "[a] depositor takes the risk, in revealing his affairs to another, that
the information will be conveyed by that person to the Government." Id. at 443;
see also Smith v. Maryland, 442 U.S. 735 (1979) (holding that user has no
expectation of privacy in telephone numbers revealed to the telephone company to
connect calls).
Miller and its progeny do not support the Government's position that
communications placed in the hands of a third party are subject to compelled
disclosure merely because a third party holds them. Miller relied on two lines of
cases to arrive at the assumption-of-risk language quoted above. First, Miller
relied on pre-Katz cases evaluating the compelled disclosure of business records
under a reasonableness standard. The Court confirmed the post-Katz vitality of the
reasonableness analysis by concluding that financial records that form part of a
business relationship with the bank are not the kind of items in which one can
expect privacy. See Miller, 425 U.S. at 440-42. Second, Miller drew upon a
9
In a prior case, Couch v. United States, 409 U.S. 322 (1973), the Court addressed
a Fourth Amendment challenge to an IRS summons compelling an accountant to
surrender records used in preparing the defendant's tax return. The Court gave the
Fourth Amendment claim only brief treatment because it "[did] not appear to be
independent of [the taxpayer's] Fifth Amendment argument." 409 U.S. at 325-26
n.6. The Court's reasoning was similar to that which it later employed in Miller.
See id. at 336 n.19.
11
series of cases involving communications revealed, recorded, or transmitted to the
government by an informant or undercover agent who is a party to the
communication. See Miller, 425 U.S. at 443. In those cases, the Court had
reasoned that "no interest legitimately protected by the Fourth Amendment is
involved," because the Fourth Amendment does not protect "a wrongdoer's
misplaced belief that a person to whom he voluntarily confides his wrongdoing
will not reveal it." Hoffa v. United States, 385 U.S. 293, 302 (1966); see also
United States v. White, 401 U.S. 745, 749, 751 (1971) (plurality opinion); Osborn
v. United States, 385 U.S. 323, 331 (1966); Lopez v. United States, 373 U.S. 427
(1963).
Neither of the two lines of cases on which Miller relies points toward the
Government's categorical rule that one loses one's expectation of privacy by
allowing a provider to transmit or store communications. Communications are not
business records of the sort contemplated in Miller and its progeny. And to place a
communication in the hands of a third party for carriage or storage is not to
"confide" or "reveal" that communication in the same sense that one "confides" or
"reveals" something to a government informant or agent by speaking to that
person, or in the sense that a depositor "reveals" something to a bank so that the
bank can process a transaction, or in the sense that one "reveals" a telephone
number so that the telephone company can connect a call. Indeed, any categorical
12
rule that a provider's involvement eliminates a user's reasonable expectation of
privacy runs headlong into the Court's holding in Katz v. United States. Katz, after
all, involved communications carried over a telephone line by a communications
carrier that undoubtedly had the technical ability to monitor the communications.
389 U.S. 347, 353 (1967). If the Government's reasoning in this case were correct,
Miller would have overruled Katz sub silentio, even while the Miller Court
purported to affirm and apply Katz.
Moreover, in a range of contexts, courts have recognized that a third-party's
involvement in carrying or storing property does not leave government agents free
to inspect that property. When the U.S. Postal Service carries mail or a sealed
package, for example, government agents cannot open the items without obtaining
a warrant. As the Supreme Court has recognized, "[l]etters and other sealed
packages are in the general class of effects in which the public at large has a
legitimate expectation of privacy; warrantless searches of such effects are
presumptively unreasonable." United States v. Jacobsen, 466 U.S. 109, 114
(1984); see also Ex parte Jackson, 96 U.S. 727, 733 (1877) ("Letters and sealed
packages . . . are as fully guarded from examination and inspection . . . as if they
were retained by the parties forwarding them in their own domiciles.").
Similarly, when someone maintains personal property on a third party's
premises, she retains an expectation of privacy in it, so long as the property is
13
secured against others' access and the third party's right of access to the premises
is limited. See, e.g., Stoner v. California, 376 U.S. 483, 489 (1964) (search of
hotel room without warrant violated Fourth Amendment, even though one who
engages a hotel room gives implied permission to hotel personnel to enter to
perform their duties); Chapman v. United States, 365 U.S. 610, 616-18 (1961)
(search of house occupied by tenant violated Fourth Amendment, even though
landlord had authority to enter house for some purposes); United States v. Johns,
851 F.2d 1131, 1133-35 (9th Cir. 1988) (implicitly recognizing reasonable
expectation of privacy in rented storage unit); cf. United States v. Rahme, 813 F.2d
31, 34 (2d Cir. 1987) (where hotel guest failed to pay rent and rental period
expired, hotel could lawfully take possession of items in room and guest had no
reasonable expectation of privacy); United States v. Poulsen, 41 F.3d 1330, 1336
(9th Cir. 1994) (renter of storage unit loses expectation of privacy when he fails to
pay rent, and facility manager may seize property and turn it over to law
enforcement).
This case is analogous to cases involving a third party's carriage or storage
of physical property. Agents here sought to remove e-mail communications from a
storage area set aside exclusively for the use of the subscriber and to which nobody
but the provider had physical access. Yet the Government does not cite or discuss
14
these cases. Instead, it seeks a categorical rule that third-party involvement
extinguishes an expectation of privacy.
2. Service provider assistance to government agents does not
reduce the government's constitutional obligations.
The Government builds much of its case on the fact that its agents obtained
Warshak's stored e-mail from his service providers. But the Government may not
avoid its constitutional obligations by an engaging an intermediary in its
surveillance. The Government also argues that service providers' technical ability
to access and scan communications for harmful content and attachments, or terms
of service announcing that it may do so, can eliminate users' expectation of
privacy in communications stored with such providers. Government Brief at 49.
Crediting that claim would misconstrue the applicable statute, the nature of a
service provider's right to protect its own property, and the nature of the
contractual relationship between users and their service providers.
a. The involvement of a service provider in the
Government's stored e-mail surveillance does not
impact the Government's constitutional obligations.
A service provider acts as the government's agent when it accedes to
surveillance requests. See United States v. Long, 64 M.J. 57 (C.A.A.F. 2006)
(describing seizure of stored e-mail by network administrator as "a part of a search
for law enforcement purposes"). When the Government initiates the search of the
15
target's email account, as it did in this case, the service provider's actions to
facilitate the search do not convert the Government's surveillance from state action
subject to Fourth Amendment requirements to a private search. See United States
v. Maxwell, 45 M.J. 406, 422 (C.A.A.F. 2006) (service provider's search of stored
e-mail at government's request not a "private search"); see also McClelland v.
McGrath, 31 F. Supp. 2d 616, 619 (N.D. Ill. 1998) (noting that when telephone
company employees act "at the request or direction of police officers," they act as
government agents and the Fourth Amendment applies).
In addition, when electronic communications providers furnish stored e-mail
to government investigators, that parallels the common practice of
telecommunications companies providing telephone line access to government
wiretappers. Wiretapping assistance is not only statutorily mandated,10 it has never
reduced the government's constitutional obligations.11 Service provider
involvement in stored e-mail surveillance does not reduce the constitutional
regulation of that practice either.
10
See 18 U.S.C. § 2518(4) (requiring and regulating provider assistance).
11
Service provider assistance in government surveillance does impose statutory
obligations on the service provider in addition to any constitutional ones. See 18
U.S.C. § 2707 (permitting civil suits against service providers for improper
disclosure).
16
b. Terms of service providing that the government may
be granted access do not affect the constitutional
requirements for stored e-mail surveillance.
The Government argues that most service providers have policies stating
that they will disclose communications in response to legal process, and that this
fact eliminates any expectation of privacy in e-mail communications. See
Government Brief at 34. A service provider's policy of complying with legal
process, however, cannot defeat a user's reasonable expectation of privacy. E-mail
users must be entitled to presume that agents will present appropriate legal
process, not that they will present any legal process. It would turn the law on its
head if service providers could merely notify their users that they intend to comply
with unconstitutional government demands and thereby immunize the government
from constitutional claims.
c. The fact that service providers can and do screen e-
mail under certain circumstances does not eliminate a
user's expectation of privacy vis-ŕ-vis government
agents.
The Government errs when it claims that Congress, through adoption of the
Stored Communications Act ("SCA"), granted service providers an unfettered right
to access users' e-mail and thereby extinguished any expectation of privacy.
Congress simply cannot extinguish a constitutional right by statute. Moreover, the
SCA grants no such unfettered right of access. It is true that a service provider is
not subject to federal criminal prosecution and civil liability under the SCA for
17
unauthorized access of its subscribers' communications. Contrary to the
Government's suggestion, however, immunity from criminal or civil liability under
one particular federal statute is not the same thing as an unfettered right of access,
for it says nothing about other sources of law (including other federal statutes,
contractual provisions, state statutes, or common law protections) that might limit a
service provider's access to a user's communications. See United States v.
Councilman 418 F.3d 67, 82 (1st Cir. 2005) (en banc) (declining to dismiss federal
Wiretap Act charge against service provider despite absence of SCA liability).
If communications providers retain broad rights of access to user e-mails in
their own terms of service, those provisions do not concern the relationship
between the user and the government. Terms of service set forth the ways in
which a service provider may need to protect its system and business from fraud,
hacking, unauthorized use, and the like. Whatever rights the service provider
might have to access communications to perform those functions, those rights do
not give the service provider the right to disclose communications for the
fundamentally different purpose of assisting law enforcement investigations of
unrelated crimes. United States v. Long, 64 M.J. 57, 63 (C.A.A.F. 2006) (consent
to monitoring did not imply consent to "engage in law enforcement intrusions by
18
examining the contents of particular e-mails in a manner unrelated to maintenance
of the e-mail system.").12
Notwithstanding its terms of service, a service provider's right to protect its
own property does not release the Government from the constraints of the
Constitution. Any third party that holds property on behalf of another, such as a
storage company, may retain the right to inspect units to prevent damage that
might occur to its property or that of other customers. The fact that the storage
company has or exercises such a right, however, says nothing about the
relationship between the storage customer and government agents. A storage
company may, on its own initiative and independently of government action,
provide to the Government the fruits of its own inspection. But that does not give
government agents license to conduct their own warrantless search of a storage
unit or to demand that the storage company search it on the Government's behalf.
When the Government or its agent examines the contents of the storage locker, it
invades a reasonable expectation of privacy, even though the storage company
retained some right of access to protect its property.
12
Whether a user forfeits an expectation of privacy when he violates those terms of
service, is not at issue in this case. See United States v. Young, 350 F.3d 1302,
1308 (11th Cir. 2004) (expectation of privacy in package unreasonable when user
shipped large amounts of cash in violation of clear carrier contract after
acknowledging carrier's unqualified right to inspect).
19
In short, Warshak retained an expectation of privacy in his e-mails stored on
his service providers' systems, notwithstanding their involvement in the search,
their contract with him, or their business practices. As a result, the government
needed to obtain at least a probable-cause warrant before conducting the stored e-
mail surveillance in this case.
II. GOVERNMENT AGENTS CANNOT EVADE THE FOURTH
AMENDMENT'S WARRANT REQUIREMENT BY COMPELLING
PRODUCTION OF COMMUNICATIONS FROM THIRD-PARTY
SERVICE PROVIDERS
For access to communications subject to a reasonable expectation of privacy,
such as stored e-mails, the Fourth Amendment requires that government agents
obtain (at a minimum) a warrant based on probable cause. Nevertheless, the
Government argues that its agents need only satisfy a "reasonableness" standard
when they "compel production" of materials. Government Brief at 36. To be
clear, the Government does not argue merely that a reasonableness standard
applies when the target lacks a reasonable expectation of privacy in the items the
agents seek. Rather, the Government argues that the reasonableness standard
applies even when the target has a reasonable expectation of privacy. See id. at 38
(arguing that "a target's reasonable expectation of privacy affects only his standing
to challenge the reasonableness of compelled disclosure"). This argument cannot
withstand scrutiny. Government agents simply cannot write the warrant
20
requirement out of the Fourth Amendment by compelling production of evidence
whenever they wish, without regard for the underlying constitutionally-protected
privacy interests.
The Government's error stems from an over-reading of cases applying a
"reasonableness" standard where government agents have used a subpoena to
compel production of documents or other items. Properly understood, those cases
identify two overlapping circumstances in which a reasonableness standard may be
appropriate: (1) where the target of an investigation has no reasonable expectation
of privacy in the items the agents seek; and (2) when an agency uses a statutorily
authorized administrative subpoena in aid of its regulatory mission, and pre-
enforcement judicial process is available to evaluate the intrusiveness of its
demands. Neither circumstance is present here.
A. Use of a "Reasonableness" Test to Evaluate Compelled
Production of Evidence Ordinarily Presumes or Follows a
Determination that the Target of the Investigation Lacks a
Reasonable Expectation of Privacy in the Items Agents Seek.
In arguing that there is a well established body of law applying a
"reasonableness" standard to evaluate compelled production of materials,
Government Brief at 38-39, the Government ignores a key unifying theme of this
case law: that the use of a reasonable subpoena to compel production of materials
is permissible where the target of the investigation lacks any expectation of privacy
in those materials.
21
In its effort to draw a categorical distinction between searching for evidence
and compelling its production, the Government relies on language in United States
v. Dionisio, 410 U.S. 1 (1973), a case involving whether a subpoena compelling
individuals to appear before a grand jury and to give voice exemplars violated the
Fourth Amendment. Id. at 3; see Government Brief at 39. Dionisio in fact
undermines the Government's position, for it illustrates that use of a subpoena does
not eliminate the need to inquire into a target's expectation of privacy. The Court
bifurcated its analysis of the respondents' Fourth Amendment challenge, first
concluding that the order that the individuals appear before the grand jury did not
constitute an unlawful seizure, Dionisio, 410 U.S. at 9-10, and then examining
whether, once the individuals were lawfully before the grand jury, the further
direction to make voice recordings constituted an unlawful search, id. at 13-15.
The language on which the Government relies addressed only the first question,
concerning the distinction between an arrest and a subpoena compelling one's
appearance. On the second question, the Court concluded that no reasonable
expectation of privacy existed, since the Fourth Amendment does not protect
physical characteristics, such as the sound of one's voice, that an individual
knowingly and necessarily exposes to the public. Id. at 14. What matters here is
the Court's mode of analysis: The Court did not suggest that the mere use of a
subpoena eliminates any need to inquire into any expectation of privacy. Rather, it
22
recognized that compelled production of evidence can be sufficiently intrusive and
immediate to constitute a search. Its assessment of whether the respondents had a
reasonable expectation of privacy in voice characteristics would have been
unnecessary if the Government's theory in this case were correct.
The "business records" cases on which the Government relies--in which
courts applied a reasonableness standard in evaluating the use of subpoenas to
compel production of corporate books and documents--carry similar import. See
Government Brief at 36-40, 43-45. Many of those cases predated the Court's
decision in Katz v. United States, see Government Brief at 36 (referring to "[a]
century of Supreme Court case law"); id. at 38-89 (citing Wilson v. United States,
221 U.S. 361 (1911); Oklahoma Press Publ'g Co. v. Walling, 327 U.S. 186
(1946)), and thus have no bearing on whether use of a subpoena categorically
defeats a reasonable expectation of privacy. In rejecting Fourth Amendment
claims in such cases, the Court consistently underscored the fact that the records
involved were merely corporate records. See Walling, 327 U.S. at 208 (distilling
prior case law as follows: "[I]n so far as [earlier cases] apply merely to the
production of corporate records and papers in response to a subpoena or order
authorized by law and safeguarded by judicial sanction," those cases establish that
the Fourth Amendment "guards against abuse only by way of too much
23
indefiniteness or breadth . . . if also the inquiry is one the demanding agency is
authorized by law to make and the materials specified are relevant.").
The Court's decision in Katz spurred new challenges to agents' acquisition
of corporate records, on the theory that the owner or subject of the records had a
reasonable expectation of privacy in the documents. The Supreme Court first
squarely addressed such a claim in United States v. Miller, 425 U.S. 435 (1976),
discussed above. See supra pp. 10-13. The Court concluded that the target of the
investigation lacked any expectation of privacy in the documents and upheld the
compelled disclosure, the reasonableness of which was uncontested by the banks to
whom the subpoenas were issued. See Miller, 425 U.S. at 446 n.9. Importantly,
the Court never suggested that an inquiry into Miller's reasonable expectation of
privacy was unnecessary because government agents proceeded by subpoena; it
said that no expectation of privacy existed. Although Miller establishes the post-
Katz vitality of a "reasonableness" analysis in cases involving compelled
disclosure of business records, it is important to understand why a reasonableness
analysis applies in Miller and subsequent cases. It is not because a target's
expectation of privacy can always be overcome by a mere subpoena. Rather, it is
because the targeted materials in cases such as Miller involve no expectation of
privacy. Indeed, as the Court has observed, "[s]pecial problems of privacy" may
be presented by attempts to compel production of items that are not business
24
records, such as a personal diary. Fisher v. United States, 425 U.S. 392, 401 n.7
(1976).
The subpoena cases on which the Government relies to suggest that use of a
subpoena categorically eliminates the need to inquire into the target's expectation
of privacy are additional cases in the Miller line. See, e.g., Donovan v. Lone Steer,
Inc., 464 U.S. 408, 415 (1984) (seeking payroll and sales records, which the Court
characterized as "corporate books or records"); SEC v. Jerry T. O'Brien, Inc., 467
U.S. 735, 743 (1984) (seeking financial records).
The Government cites only a single post-Katz case in which a court
sustained the use of a subpoena to compel production of property despite the
court's explicit assumption that the target of the investigation maintained an
expectation of privacy in the property sought. In United States v. Palmer, 536 F.2d
1278 (9th Cir. 1976), the Court of Appeals for the Ninth Circuit held that the
government did not violate the Fourth Amendment when it compelled a
defendant's attorney to produce property held on the defendant's behalf. The court
reasoned that "a properly limited subpoena does not constitute an unreasonable
search and seizure under the fourth amendment." Id. at 1282.
In reaching this conclusion, Palmer relied on business cases pre-dating
Miller, including Walling, Hale v. Henkel, 201 U.S. 43, 70 (1906) and others.
Palmer was decided within six weeks of Miller and did not cite that decision.
25
Because Palmer relied exclusively on cases that the Miller Court clarified involved
no reasonable expectation of privacy, it is not persuasive authority for the
proposition that a subpoena is appropriate even where a reasonable expectation of
privacy exists.
B. Administrative Subpoena Cases Are Wholly Inapplicable in This
Case.
The Government also relies on administrative subpoena cases to support a
categorical distinction between compelling production of evidence and searching
for evidence. See Government Brief at 40-41 (citing In re Administrative
Subpoena John Doe, D.P.M., 253 F.3d 256 (6th Cir. 2001); United States v.
Morton Salt Co., 338 U.S. 632 (1990)); id. at 39 (citing In re Subpoena Duces
Tecum (United States v. Bailey), 228 F.3d 341 (4th Cir. 2000)). The rationale for
evaluating an administrative subpoena under a reasonableness inquiry does not
apply in this case.
Case law concerning administrative subpoenas recognizes that, when a
corporation's activities affect interstate commerce, the federal Government has an
investigative power analogous to the "visitorial" power of the incorporating state.
See Oklahoma Press Pub'g Co. v. Walling, 327 U.S. 186, 204 (1946).
Accordingly, Congress may grant an agency a "power of inquisition" into whether
the law that the agency administers is being violated, see Morton Salt, 338 U.S. at
642; id. at 652 (noting that "the privilege of engaging in interstate commerce"
26
carries with it "an enhanced measure of regulation"), and courts will test the use of
such a subpoena under a reasonableness analysis, see In re Administrative
Subpoena John Doe, D.P.M., 253 F.3d 256, 265 (6th Cir. 2001).
Although the Government contends that the § 2703(d) orders at issue in this
case are analogous to administrative subpoenas, see Government Brief at 41 n.7
(characterizing § 2703(d) orders as "a form of agency investigative authority"
analogous to that recognized in Morton Salt), they are not. Even those statutes
authorizing the Attorney General to issue administrative subpoenas as a prelude to
a criminal investigation specify the narrow regulatory function the subpoena
authority must serve. See, e.g., 21 U.S.C. § 876 (2000) (authorizing use of
administrative subpoenas in investigations "relating to the [Attorney General's]
functions under this subchapter with respect to controlled substances, listed
chemicals, tableting machines, or encapsulating machines"); 18 U.S.C. § 1968
(2000) (authorizing a "civil investigative demand" for "documentary materials
relevant to a racketeering investigation"); 18 U.S.C. § 3486(a)(1)(A)(i) (2000)
(authorizing administrative subpoenas in connection with investigation of health
care offenses or sexual exploitation or abuse of children). In contrast, § 2703 is a
general rule of criminal procedure, analogous to Rule 41 of the Federal Rules of
Criminal Procedure and untethered to any specific regulatory function. Cases
concerning administrative subpoenas are thus wholly inapplicable in this case.
27
Even if administrative subpoena cases were relevant here, those cases do not
support the Government's position that an inquiry into a reasonable expectation of
privacy is irrelevant whenever government agents choose to compel production of
rather than search for evidence. Administrative subpoena cases recognize not only
that such subpoenas must serve a narrow regulatory mission, but also that the
legitimacy of an administrative subpoena derives from the judicial process
available to test the intrusiveness of the subpoena before it is enforced. Two of the
administrative subpoena cases on which the Government relies--both dealing with
administrative subpoenas in connection with health care fraud investigations--
illustrate this principle. In In re Subpoena Duces Tecum (United States v. Bailey),
228 F.3d 341, 348 (4th Cir. 2000), the Court of Appeals for the Fourth Circuit
explained that a subpoena "commences an adversary process during which the
person served with the subpoena may challenge it in court before complying with
its demands. . . . As judicial process is afforded before any intrusion occurs, the
proposed intrusion is regulated by, and its justification derives from, that process."
(Emphasis added.) Similarly, in In re Administrative Subpoena John Doe, D.P.M.,
253 F.3d 256, 264 (6th Cir. 2001), this Court recognized that the target of the
administrative subpoena had an opportunity to challenge the intrusiveness of that
subpoena before complying with it. In both of these cases, the target of the
subpoena was also the target of the investigation, and thus could assert any
28
relevant privacy interests in the documents requested before a court enforced the
subpoena.
An order to compel production of e-mail is distinct from the administrative
subpoenas used in Bailey and Doe in two obvious respects. First, because the
service provider on whom a § 2703(d) order is served is not the target of the
investigation, and only the recipient of the order has an opportunity to challenge it,
the target of the investigation has no opportunity parallel to that of Bailey or Doe
to assert that the order is unduly intrusive. To be sure, as the Government notes,
the Supreme Court has applied a reasonableness test to evaluate subpoenas even
when agents compel disclosure of information held by parties who are not
themselves the subject of an investigation. See Government Brief at 43. As
discussed above, however, the evaluation of a third-party subpoena under a
reasonableness standard either presumes or follows a prior determination that the
target of the investigation lacks an expectation of privacy in the items compelled.
See supra pp 21-26.
Second, in both Bailey and Doe, the documents the agents sought were
records compiled in the ordinary course of a business relationship--records in
which (as explained above) the Supreme Court has found any expectation of
privacy to be unreasonable. See supra pp. 10-13; see Bailey, 228 F.3d at 344
(listing purchase records, bank records, records concerning requirements of filing
29
health care claims, and records of patients whose services were billed to particular
insurance companies); id. at 351 (noting that patient records involved were subject
to agreement to release information to insurance companies); Doe, 253 F.3d at
260-61 (listing bank and financial records of Doe and family members, tax records,
patient referral records, and records concerning Doe's medical education).
In sum, contrary to the Government's argument, the compelled production
of evidence through use of a subpoena is not analytically distinct from a search for
evidence. Both approaches require inquiry into a target's reasonable expectation
of privacy. To hold otherwise would be to suggest that government agents can
evade the warrant requirement of the Fourth Amendment whenever it is convenient
for them to do so, by "compelling production" of rather than searching for the
evidence they seek.
CONCLUSION
In sum, stored e-mail surveillance by the government on less than probable
cause violates the Fourth Amendment. Compelling a service provider to produce a
person's e-mail does not entitle government agents to evade constitutional
prerequisites. A holding to the contrary would eviscerate the privacy of modern
communications.
30
Respectfully submitted,
____________________
PATRICIA L. BELLIA
Notre Dame Law School
Notre Dame, In 46556
(574) 631-3866
SUSAN FREIWALD
University of San Francisco School of Law
2130 Fulton Street
San Francisco, CA 94117
(415) 422-6467
Counsel for Amici Curiae
Dated: November 21, 2006
31
APPENDIX LIST OF AMICI1
Ann Bartow
Associate Professor of Law
University of South Carolina School of Law
Patricia L. Bellia
Lilly Endowment Associate Professor of Law
Notre Dame Law School
Eric. B. Easton
Professor of Law
University of Baltimore School of Law
Susan Freiwald
Professor of Law
University of San Francisco School of Law
Jennifer S. Granick
Director and Instructor of the Stanford Cyberlaw Clinic
Stanford Law School
Stephen E. Henderson
Associate Professor
Widener University School of Law
Deirdre Mulligan
Director, Samuelson Law, Technology and Public Policy Clinic
University of California, Berkeley,
Boalt Hall School of Law
Charles B. Meyer
Visiting Professor of Law
University of Houston Law Center
Neil M. Richards
Associate Professor of Law
Washington University in St. Louis
1
Affiliations for identification purposes only.
App. 1
Michael L. Rustad
Thomas F. Lambert, Jr. Professor of Law
Suffolk University Law School
Pamela Samuelson
Chancellor's Professor of Law and Information Management
University of California, Berkeley
Christopher Slobogin
Stephen C. O'Connell, Chair, Professor of Law
University of Florida College of Law
Katherine J. Strandburg
Associate Professor of Law
DePaul University College of Law
Peter Swire
C. William O'Neill Professor of Law
Moritz College of Law of the Ohio State University
Mary W.S. Wong
Professor of Law
Franklin Pierce Law Center
App. 2
CERTIFICATE OF COMPLIANCE
I hereby certify that the foregoing brief complies with the type-volume
limitation provided in Rule 32(a)(7)(C)(i) of the Federal Rules of Appellate
Procedure. This brief contains 6,993 words of Times New Roman (14 point)
proportional type and was prepared using Microsoft Word.
_______________
PATRICIA L. BELLIA
Notre Dame Law School
Notre Dame, IN 46556
(574) 631-3866
CERTIFICATE OF SERVICE
I hereby certify that the foregoing brief for Amici Curiae Professors of
Electronic Privacy Law and Internet Law was served this 21st day of November,
2006, by first-class mail upon counsel for defendant-appellant and counsel for
plaintiff-appellee at the addresses below, and that, pursuant to Fed. R. App. P.
25(a)(2)(B)(i), said brief was filed by dispatching an original and six paper copies
via express courier to the Clerk of the Court.
GREGORY G. LOCKHART
United States Attorney
DONETTA D. WIETHE
BENJAMIN C. GLASSMAN
Assistant U.S. Attorneys
221 E. 4th St., Ste. 400
Cincinnati, OH 45202
JOHN H. ZACHARIA
NATHAN P. JUDISH
U.S. Department of Justice
1301 New York Ave., N.W., Suite 600
Washington, D.C. 20005
MARTIN G. WIENBERG, ESQ.
20 Park Plaza, Suite 905
Boston, MA 02116
MARTIN S. PINALES, ESQ.
105 W. 4th St., Suite 920,
Cincinnati, OH 45202
__________________
PATRICIA L. BELLIA
Notre Dame Law School
Notre Dame, IN 46556
(574) 631-3866