Date: 06-19-2007

Case Style: Steven Warshak v. United States of America

Case Number: 06-4092

Judge: Boyce F. Martin, Jr.

Court: United States Court of Appeals for the Sixth Circuit on appeal from the Southern District of Ohio (Hamilton County)

Plaintiff's Attorney:

Martin Weinberg, Boston, Massachusetts, Martin 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.

Defendant's Attorney:

Nathan P. Judish, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellant.

Description:

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.

I.

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.

* * *

Outcome: The district court correctly determined that e-mail users maintain a reasonable expectation of privacy in the content of their e-mails, and we agree that the injunctive relief it crafted was largely appropriate, although we find necessary one modification. On remand, the preliminary injunction should be modified to prohibit the United States from seizing the contents of a personal e-mail account maintained by an ISP in the name of any resident of the Southern District of Ohio, pursuant to a court order issued under 18 U.S.C. § 2703(d), without either (1) providing the relevant account holder or subscriber prior notice and an opportunity to be heard, or (2) making a fact-specific showing that the account holder maintained no expectation of privacy with respect to the ISP, in which case only the ISP need be provided prior notice and an opportunity to be heard.

Plaintiff's Experts: Unknown

Defendant's Experts: Unknown

Comments: None