Warshak v. U.S.
| Decision Date | 18 June 2007 |
| Docket Number | No. 06-4092.,06-4092. |
| Citation | 490 F.3d 455 |
| Parties | Steven WARSHAK, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
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, Boston, Massachusetts, Martin S. 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: MARTIN and DAUGHTREY, Circuit Judges; SCHWARZER, District Judge.*
The government appeals the district court's entry of a preliminary injunction, prohibiting it from seizing "the contents of any personal e-mail account maintained by an Internet Service Provider in the name of any resident of the Southern District of Ohio without providing the relevant account holder or subscriber prior notice and an opportunity to be heard on any complaint, motion, or other pleading seeking issuance of such an order." D. Ct. Op. at 19. For the reasons discussed below, we largely affirm the district court's decision, requiring only that the preliminary injunction be slightly modified on remand.
In March 2005, the United States was engaged in a criminal investigation of Plaintiff Steven Warshak and the company he owned, Berkeley Premium Nutraceuticals, Inc. The investigation pertained to allegations of mail and wire fraud, money laundering, and related federal offenses. On May 6, 2005, the government obtained an order from a United States Magistrate Judge in the Southern District of Ohio directing internet service provider ("ISP") NuVox Communications to turn over to government agents information pertaining to Warshak's e-mail account with NuVox. The information to be disclosed included (1) customer account information, such as application information, "account identifiers," "[b]illing information to include bank account numbers," contact information, and "[any] other information pertaining to the customer, including set up, synchronization, etc."; (2) "[t]he contents of wire or electronic communications (not in electronic storage unless greater than 181 days old) that were placed or stored in directories or files owned or controlled" by Warshak; and (3) "[a]ll Log files and backup tapes." Joint App'x at 49.
The order stated that it was issued under 18 U.S.C. § 2703, part of the Stored Communications Act ("SCA"), and that it was based on "specific and articulable facts showing that there are reasonable grounds to believe that the records or other information sought are relevant and material to an ongoing criminal investigation." The order was issued under seal, and prohibited NuVox from "disclos[ing] the existence of the Application or this Order of the Court, or the existence of this investigation, to the listed customer or to any person unless and until authorized to do so by the Court." The magistrate further Ordered that "the notification by the government otherwise required under 18 U.S.C. § 2703(b)(1)(B) be delayed for ninety days." On September 12, 2005, the government obtained a nearly identical order pertaining to Yahoo, another ISP, that sought the same types of information from Warshak's Yahoo e-mail account and a Yahoo account identified with another individual named Ron Fricke.
On May 31, 2006, over a year after obtaining the NuVox order, the United States wrote to Warshak to notify him of both orders and their requirements.1 The magistrate had unsealed both orders the previous day. Based on this disclosure, Warshak filed suit on June 12, 2006, seeking declaratory and injunctive relief, and alleging that the compelled disclosure of his e-mails without a warrant violated the Fourth Amendment and the SCA. After filing the complaint, Warshak's counsel sought the government's assurance that it would not seek additional orders under section 2703(d) directed at his e-mails, at least for some discrete period of time during the pendency of his civil suit. The government declined to provide any such assurance. In response, Warshak moved for a temporary restraining order and/or a preliminary injunction prohibiting such future searches. The district court held a telephonic hearing on the motions, and eventually granted part of the equitable relief sought by Warshak.
In considering the factors for a preliminary injunction, the district court reasoned that e-mails held by an ISP were roughly analogous to sealed letters, in which the sender maintains an expectation of privacy. This privacy interest requires that law enforcement officials obtain a warrant, based on a showing of probable cause, as a prerequisite to a search of the e-mails. Because it viewed Warshak's constitutional claim as meritorious, the district court deemed it unnecessary to examine his likelihood of success on the SCA claim. It also found that Warshak would suffer irreparable harm based on any additional constitutional violations, that such harm was imminent in light of the government's past violations and its refusal to agree not to conduct similar seizures in the future, that Warshak lacked an adequate remedy at law to protect his Fourth Amendment rights, and that the public interest in preventing constitutional violations weighed in favor of the injunction. The district court also made clear that further factual development would be necessary for a final disposition, and that the injunction was tailored to protect Warshak from constitutional violations in the interim.
The district court rejected the full scope of Warshak's request to enjoin the government from seizing any of his e-mails in the future. It stated that it was not "presently prepared to hold that 18 U.S.C. § 2703(d) facially violates the Fourth Amendment by simple virtue of the fact that it authorizes the seizure of personal e-mails from commercial ISPs without a warrant and on less than a showing of probable cause." D. Ct. Op. at 16-17. The statute's authorization of this procedure based only on the government's ex parte representations struck the district court as more problematic, however, and it held that the "combination of a standard of proof less than probable cause and potentially broad ex parte authorization cannot stand." Id. at 17. As a result, it deemed the constitutional flaws of the statute "facial in nature," and agreed to preliminarily enjoin additional seizures of e-mails from an ISP account of any resident of the Southern District of Ohio without notice to the account holder and an opportunity for a hearing.
The gist of this remedy appears to be that when a hearing is required and the e-mail account holder is given an opportunity in court to resist the disclosure of information, any resulting order is more like a subpoena than a search warrant. Therefore the standard necessary to obtain an order under the SCA—that the government introduce "specific and articulable facts showing that there are reasonable grounds to believe that the contents" of the e-mail to be seized "are relevant and material to an ongoing criminal investigation"—is permissible as the functional equivalent of a subpoena given the subject's ability to contest the order in court. Because this standard is lower than the probable cause standard necessary to obtain a search warrant, it is sufficient to justify a warrantless search only in instances where notice is provided to the account holder.
The government appeals from the district court's ruling.
The SCA, passed by Congress in 1986, is codified at 18 U.S.C. §§ 2701 to 2712, and contains a number of provisions pertaining to the accessibility of "stored wire and electronic communications and transactional records." Portions of the SCA that are not directly at stake here prohibit unauthorized access of electronic communications (§ 2701) and prohibit a service provider from divulging the contents of electronic communications that it is storing for a customer with certain exceptions pertaining to law enforcement needs (§ 2702). At issue in this case is § 2703, which provides procedures through which a governmental entity can access both user records and other subscriber information, and the content of electronic messages.
Subsection (a) requires the use of a warrant to access messages that have been in storage for 180 days or less. Subsection (b) provides that to obtain messages that have been stored for over 180 days, the government generally must either (1) obtain a search warrant, (2) use an administrative subpoena, or (3) obtain a court order. The latter two require prior notice to the subscriber, allowing the subscriber an opportunity for judicial review before the disclosure:
(b) Contents of wire or electronic communications in a remote computing service.
(1) A governmental entity may require a provider of remote computing service to disclose the contents of any wire or electronic communication to which this paragraph is made applicable by paragraph (2) of this subsection—
(A) without required notice to the subscriber or customer, if the governmental entity obtains a warrant issued using the procedures described in the Federal Rules of Criminal Procedure by a court with jurisdiction over the offense under investigation or equivalent State warrant; or
(B) with prior notice from the governmental entity to the subscriber or customer if the governmental entity—
(i) uses an administrative subpoena authorized by a Federal or State statute or a...
To continue reading
Request your trial
-
U.S.A v. Steven Warshak, No. 08-3997
...As some forms of communication begin to diminish, the Fourth Amendment must recognize and protect nascent ones that arise. See Warshak I, 490 F.3d at 473 ("It goes without saying that like the telephone earlier in our history, e-mail is an ever-increasing mode of private communication, and ......
-
In re Orders (1) Authorizing Use of Pen Registers
...it could be revealed to the government by that person, or obtained through a subpoena directed to that person." Warshak v. United States, 490 F.3d 455, 470 (6th Cir.2007). However, "[t]he same does not necessarily apply ... to an intermediary that merely has the ability to access the inform......
-
Jdc Management, LLC v. Reich, Case No. 1:08-cv-760.
...(Maloney, C.J.) (citing Hilliard v. Clark, 2007 WL 2589956, *3 (W.D.Mich. Aug. 31, 2007) (Maloney, J.) (citing Warshak v. US, 490 F.3d 455, 465 (6th Cir.2007))).10 The failure to show any likelihood of success on the merits—let alone a strong or substantial likelihood of success—is enough, ......
-
In re U.S. for Order Dir. a Prov. Of Elec. Commun.
...at 756-573. A panel of the Sixth Circuit more recently further elucidated the bounds of the waiver of expectation doctrine in Warshak, 490 F.3d 455,77 in which it explained that an intermediary's mere ability to access information sought by the Government was enough to create an assumption ......
-
When Rummaging Goes Digital: Fourth Amendment Particularity and Stored E-mail Surveillance
...206. See supra notes 204-05 and accompanying text. 207. See supra notes 204-05 and accompanying text. 208. United States v. Warshak, 490 F.3d 455, 476 n.8 (6th Cir. 209. See United States v. Vanichromanee, 742 F.2d 340, 347 (7th Cir. 1984) (holding a warrant that only authorized seizure of ......
-
Crime-Severity Distinctions and the Fourth Amendment: Reassessing Reasonableness in a Changing World
...For a possible demonstration of the courts’ nervousness about labeling the use of new technologies a search, see Warshak v. United States, 490 F.3d 455, 473 (6th Cir. 2007) (“[I]ndividuals maintain a reasonable expectation of privacy in e-mails that are stored with, or sent or received thro......
-
Back to Katz: reasonable expectation of privacy in the Facebook age.
...on a vehicle required a warrant). (301.) See Orenstein Opinion, supra note 279, at * 19. (302.) Id. at * 11-12. (303.) Id. at * 13. (304.) 490 F.3d 455 (6th Cir. 2007), vacated and remanded, 532 F.3d 521 (2008), aft'd on appeal after remand, United States v. Warshak, Nos. 08-3997, 08-4212, ......
-
The warrantless interception of e-mail: Fourth Amendment search or free rein for the police?
...lock on a locker and recognizing a right of privacy). There is no reason to treat e-mail differently. (184.) Warshak v. United States, 490 F.3d 455, 473 (6th Cir. 2007), vacated on other grounds by 532 F.3d 521 (6th Cir. (185.) Id. at 460.[section] (186.) Electronic Communications Act of 19......