Warshak v. U.S.

• Decision Date: 11 July 2008
• Docket Number: No. 06-4092.,06-4092.
• Parties: Steven WARSHAK, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

532 F.3d 521

Steven WARSHAK, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.

No. 06-4092.

United States Court of Appeals, Sixth Circuit.

Argued: December 5, 2007.

Decided and Filed: July 11, 2008.

ARGUED: Steven L. Lane, United States Department of Justice, Washington, D.C., for Appellant. Martin G. Weinberg, Law Offices, Boston, Massachusetts, for Appellee. ON BRIEF: Steven L. Lane, Nathan P. Judish, John H. Zacharia, United States Department of Justice, Washington, D.C., Benjamin C. Glassman, Donetta D. Wiethe, Assistant United States Attorneys, Cincinnati, Ohio, for Appellant. Martin G. Weinberg, Law Offices, Boston, Massachusetts, Martin Stanley Pinales, Sirkin, Pinales & Schwartz, Cincinnati, Ohio, for Appellee. Kevin S. Bankston, Electronic Frontier Foundation, San Francisco, California, Patricia L. Bellia, Notre Dame Law School, Notre Dame, Indiana, Susan A. Freiwald, University of San Francisco School of Law, San Francisco, California, for Amici Curiae.

Before: BOGGS, Chief Judge; MARTIN, BATCHELDER, DAUGHTREY, MOORE, COLE, CLAY, GILMAN, GIBBONS, ROGERS, SUTTON, COOK, McKEAGUE, and GRIFFIN, Circuit Judges.

SUTTON, J., delivered the opinion of the court, in which BOGGS, C.J BATCHELDER, GILMAN, GIBBONS, ROGERS, COOK, McKEAGUE, and GRIFFIN, JJ., joined. MARTIN, J. (pp. 534-38), delivered a separate dissenting opinion in which DAUGHTREY, MOORE, COLE, and CLAY, JJ., joined.

OPINION

SUTTON, Circuit Judge.

Since 1986, Title II of the Electronic Communications Privacy Act of 1986, Pub.L. No. 99-508, § 201, 100 Stat. 1848, codified as amended at 18 U.S.C. §§ 2701-2711, commonly referred to as the Stored Communications Act, has authorized the federal government to require internet service providers to disclose the contents of "electronic communication[s]" of their customers in certain circumstances, including by way of an ex parte court order. Id. § 2703(d). The government obtained two such orders in 2005 to search Steven Warshak's e-mails. When Warshak learned about the orders, roughly a year later, he filed a declaratory judgment action, seeking to invalidate § 2703(d) under the Fourth Amendment, and he moved for a preliminary injunction, seeking to enjoin the government from conducting further ex parte e-mail searches. The district court granted the motion and enjoined the government from using § 2703(d) to seize the contents of "any personal email account[ ]" belonging to Warshak or "any resident of the Southern District of Ohio" without "prior notice and an opportunity to be heard." JA 129. We vacate the preliminary injunction because Warshak's constitutional claim is not ripe for judicial resolution.

I.

A.

The Stored Communications Act prohibits unauthorized access to certain electronic communications, see 18 U.S.C. § 2701, and places restrictions on a service provider's disclosure of certain communications, see id. § 2702. It also permits a "governmental entity" to compel a service provider to disclose the contents of communications in certain circumstances. See id. § 2703.

Three relevant definitions bear on the meaning of the compelled-disclosure provisions of the Act. "[E]lectronic communication service[s]" permit "users ... to send or receive wire or electronic communications," id. § 2510(15), a definition that covers basic e-mail services, see Patricia L. Bellia et al., Cyberlaw: Problems of Policy and Jurisprudence in the Information Age 584 (2d ed.2004). "[E]lectronic storage" is "any temporary, intermediate storage of a wire or electronic communication ... and ... any storage of such communication by an electronic communication service for purposes of backup protection of such communication." 18 U.S.C. § 2510(17). "[R]emote computing service[s]" provide "computer storage or processing services" to customers, id. § 2711(2), and are designed for longer-term storage, see Orin S. Kerr, A User's Guide to the Stored Communications Act, and a Legislator's Guide to Amending It, 72 Geo. Wash. L.Rev. 1208, 1216 (2004).

The compelled-disclosure provisions give different levels of privacy protection based on whether the e-mail is held with an electronic communication service or a remote computing service and based on how long the e-mail has been in electronic storage. The government may obtain the contents of e-mails that are "in electronic storage" with an electronic communication service for 180 days or less "only pursuant to a warrant." 18 U.S.C. § 2703(a). The government has three options for obtaining communications stored with a remote computing service and communications that have been in electronic storage with an electronic service provider for more than 180 days: (1) obtain a warrant; (2) use an administrative subpoena; or (3) obtain a court order under § 2703(d). Id. § 2703(a), (b).

Under § 2703(d), the provision at issue in this case, "a court of competent jurisdiction" may issue an order based on "specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation." Id. § 2703(d). Although the statute generally requires the government to give the user prior notice of the disclosure unless it obtains a warrant, it contains an exception, id. § 2703(b)(1)(B), which says the government may delay notice in 90-day increments, id. § 2705(a)(4), if notification would result in "(A) endangering the life or physical safety of an individual; (B) flight from prosecution; (C) destruction of or tampering with evidence; (D) intimidation of potential witnesses; or (E) otherwise seriously jeopardizing an investigation or unduly delaying a trial," id. § 2705(a)(2); see also id. § 2705(b) (authorizing the government to seek a court order preventing the service provider from disclosing the subpoena if the same conditions are met).

B.

Warshak is the president and sole owner of Berkeley Premium Nutraceuticals, Inc., which became the target of an investigation into "mail and wire fraud, money laundering, and other federal offenses" based on its "nationwide marketing, distribution, and sale of products." JA 47, 50. The government sought permission from a magistrate judge to require Warshak's internet service providers — NuVox Communications and Yahoo! — to turn over Warshak's account information, "[a]ll [l]og files and backup tapes" and the contents of e-mails that had been "accessed, viewed, or downloaded" or that were more than 181 days old. JA 49, 52.

On May 6, 2005, and again on September 12, 2005, the magistrate judge granted the applications under § 2703(d) of the Act. As required, the orders were based on "specific and articulable facts showing that there [were] reasonable grounds to believe that the records or other information sought [were] relevant and material to an ongoing criminal investigation." JA 48, 51; see 18 U.S.C. § 2703(d). As permitted, the orders did not give Warshak immediate notice of the disclosures. 18 U.S.C. § 2703(b)(1)(B). Concluding that notice to Warshak "would seriously jeopardize the investigation," the magistrate judge ordered the government to delay notice for 90 days and mandated that the "[o]rder[s][be] sealed until otherwise ordered by the Court." JA 48, 51; see 18 U.S.C. §§ 2703(b)(1)(B), 2705(a).

On May 31, 2006, roughly a year after the court issued the first § 2703(d) order, the government gave Warshak notice of the orders. In response, he sued the government on June 12, seeking declaratory and injunctive relief. Among other complaints, Warshak alleged that § 2703(d) violated the Fourth Amendment on its face and as applied because the searches were based on a showing of less than probable cause and were not supported by a warrant.

On June 30, Warshak filed a motion for a preliminary injunction. The court granted the motion and enjoined the government from using § 2703(d) to search "the contents of any personal email account maintained by an [ISP] in the name of any resident of the Southern District of Ohio" without providing the user "prior notice and an opportunity to be heard." JA 130. The court reasoned that Warshak likely would succeed on his Fourth Amendment claim because internet users have a reasonable expectation of privacy in e-mails, and because the orders authorized warrantless searches on less than probable cause. The court also concluded that Warshak faced imminent harm based on the two prior orders and the government's refusal to pledge not to seek additional orders in the future. The court enjoined the government from enforcing § 2703(d) or related sections of the Act (sections 2703(b)(1)(B)(ii) and 2705) to the extent that they "authorize the ex parte issuance of search and seizure orders without a warrant and on less than a showing of probable cause." JA 129. While the court relied "in part" on the "threat of irreparable injury" to Warshak, it explained that "the constitutional flaws ... are facial in nature." Id.

On September 20, 2006, a federal grand jury indicted Warshak for bank fraud, mail fraud and money laundering, among other federal crimes. See Indictment, United States v. Warshak, No. 1:06-cr-00111 (S.D.Ohio Sept. 20, 2006). On February 22, 2008, a jury convicted him on 93 counts. See Jury Verdict as to Steven E. Warshak, Warshak, No. 1:06-cr-00111 (S.D.Ohio Feb. 22, 2008).

II.

The Constitution does not extend the "judicial Power" to any legal question, wherever and however presented, but only to those legal questions presented in "Cases" and "Controversies." U.S. Const. art. III, § 2. A claim is not "amenable to ... the judicial process," Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 102, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998), when it is filed too early (making it unripe), when it is filed too late (making it moot) or when the claimant lacks a sufficiently concrete and redressable interest in the dispute (depriving ...