The Sixth Circuit Court of Appeals ruled today in Warshak v. United States. At issue, in part, was whether a person has a reasonable expectation of privacy in their email stored at their ISP, and if so, whether the non-warrant seizure provisions of the Stored Communications Act are valid under the Fourth Amendment.

The answers: Yes and No. Yes, Warshak did have a reasonable expectation of privacy in his emails, even though they were stored at his ISP. The court reached this decision in spite of U.S. v. Miller, which has been repeatedly abused to suggest otherwise. Miller held that a bank customer has no reasonable expectation of privacy in bank records, because they have been turned over to a third party. The pro-search-and-seizure crowd has run with this, claiming that Miller stands for the proposition that any content turned over to a third party voids a reasonable expectation of privacy.

The issue is whether email messages are actually turned over to a third party for storage. In Miller, information of bank transactions were necessarily turned over to the bank; how else would they track what a customer did? Distorting it to have a much broader scope simply made no sense. Similarly, in Smith v. Maryland, the Supreme Court held that there was no reasonable expectation of privacy in the phone numbers a person dialed, because they were necessarily turned over and often recorded by the phone companies in their normal courses of business. However, Smith did overturn Katz by any stretch, and in fact imposed the content/non-content divide that has been causing so much consternation.

The court flatly denied the argument that a third party receiving and holding email messages constituted the elimination of a reasonable expectation of privacy, because the third party in this instance was simply an intermediary, not a party the content was being shared with:

Compelled disclosure of subscriber information and related records through the ISP might not underermine the e-mail subscriber’s Fourth Amendment interest under Smith, because like the information obtained through the pen register in Smith and like the bank records in Miller, subscriber information and related records are records of the service provider as well, and may likely be accessed by ISP employees in the normal course of their employment. Consequently, the user does not maintain the same expectation of privacy in them vis- a-vis the service provider, and a third party subpoena to the service provider to access information that is shared with it likely creates no Fourth Amendment problems. The combined precedents of Katz and Smith, however, recognize a heightened protection for the content of the communications. Like telephone conversations, simply because the phone company or the ISP could access the content of e-mails and phone calls, the privacy expectation in the content of either is not diminished, because there is a societal expectation that the ISP or the phone company will not do so as a matter of course.

That is some good stuff right there. Yes, a user of a commercial email service may retain a reasonable expectation of privacy in the messages stored by that service.

And so, the big question, are those facets of the Stored Communications Act that allow such seizures without warrants (or other sufficient notice to make the seizures reasonable) facially valid?

The Sixth Circuit said no:

Under Berger, facial invalidation is justified where the statute, on its face, endorses procedures to authorize a search that clearly do not comport with the Fourth Amendment. A seizure of e-mails from an ISP, without either a warrant supported by probable cause, notice to the account holder to render the intrusion the functionaly equivalent of a subpoena, or a showing that the user maintained no expectation of privacy in the e-mail, amounts to exactly this.

Perhaps a less crushing finding, but also an important one, was the finding that Warshak had standing to file this suit at all. It would have been easy for the court to crumble under the Lyons argument put forth by the government and let this slide under the table. However, unlike Lyons, the court noted that it is government policy to seize email using the procedures of the Stored Communications Act, and with the prosecution of Warshak still ongoing, there's still reason to believe that he had standing to request that the government be enjoined from further illegal seizures of his email.

What didn't the court address that I sure would like some more court action on? The divide between content and non-content. However, this is big. Congratulations to University of San Francisco Professor Susan Freiwald (my Cyberspace Law prof and the reviewer of my paper), Professor Patricia Bellia of Notre Dame, and the Electronic Frontier Foundation as Amici Curiae on this matter.