Senders’ Fourth Amendment Rights in E-mails Seized from the E-mail Accounts of Recipients

A recent case, United States v. Young (D. Utah, December 17, 2013) (Campbell, J.), touches on a novel, interesting, and quite important question of Fourth Amendment law: Assuming that e-mail account-holders generally have Fourth Amendment rights in the contents of their e-mails, as courts have so far held, when does a person’s Fourth Amendment rights in copies of sent e-mails lose Fourth Amendment protection?

To understand the question, consider Fourth Amendment rights in postal letters. Before a letter is sent, only the sender has rights in the letter; during transmission, both the sender and recipient have rights in the letter; and once the letter is delivered at its destination, the recipient maintains Fourth Amendment rights but the sender’s rights expires. But how do you apply this to an e-mail? By analogy, a sender loses Fourth Amendment rights in the copy of the e-mail that the recipient has downloaded to his personal computer or cell phone. But does the sender have Fourth Amendment rights in the copy of the e-mail stored on the recipient’s server after the recipient has accessed the copy? And does the sender have Fourth Amendment rights in the copy of the e-mail stored on the recipient’s server before the recipient has accessed the copy? At what point does the sender’s Fourth Amendment rights in the sent copy expire?

In Young, the government obtained e-mails from the accounts of defendants in a conspiracy case pursuant to a series of search warrants. Two defendants moved to suppress e-mails obtained from the accounts of their co-defendants, alleging that the warrants were defective. The District Court ruled that the movants had no Fourth Amendment rights in the e-mails found in their co-defendants’ accounts:

As parties to the e-mails obtained from AISC’s computers and the Internet service provider (ISP), America Online, Inc., Mr. Lustyik and Mr. Thaler claim that they have standing because they had a subjective and reasonable privacy interest in the e-mail conversations which they were having with their Co-Defendants. Recognizing that they would not have standing if the message had been transported through traditional mail, Mr. Lustyik and Mr. Thaler argue that e-mail and text-message conversations should be distinguished from correspondence by traditional mail because “e[-]mail is non-tangible and provides a platform for communication which, although asynchronous, bares more similarity to a face-to-face meeting or a telephone call than traditional mail.” They further argue that the instantaneous nature of e-mails makes them more comparable to telephone calls: “Whereas the expectation of privacy may be lost upon delivery of a traditional letter, the expectation of privacy in an e[-]mail conversation continues throughout the discussion (similar to a phone call)” and therefore the interception of such a communication violates the privacy interests of all parties involved in the conversation.

But the defendants are wrong as a matter of law. A sender of an e-mail loses his or her reasonable expectation of privacy in an e-mail that has actually reached the intended recipient. Guest v. Leis, 255 F.3d 325, 333 (6th Cir. 2001); see also United States v. Lifshitz, 369 F.3d 173, 190 (2d Cir. 2004) (An individual may not “enjoy [] an expectation of privacy in transmissions over the Internet or e-mail that have already arrived at the recipient”). “The e-mailer would be analogous to a letter-writer, whose `expectation of privacy ordinarily terminates upon delivery’ of the letter.” Guest, 255 F.3d at 333 (quoting United States v. King, 55 F.3d 1193, 1196 (6th Cir. 1995). In Warshak v. United States, the United States Court of Appeals for the Sixth Circuit analogized a search and seizure of e-mails through an ISP to the interception of a letter at a post office. 631 F.3d 266, 286 (6th Cir. 2010). Here, transmission of all the e-mails and texts was complete before seizure, that is, the e-mails had already arrived at the intended recipient account. Any reasonable expectation of privacy Mr. Lustyik and Mr. Thaler may have had in their e-mails ended when Mr. Taylor received the messages in his and AISC’s e-mail accounts.

It’s an interesting analysis, although I’m slightly confused about one point: Is the court saying that the Fourth Amendment rights expired when they arrived at the account, before the e-mails were accessed, or is the court saying that the Fourth Amendment rights expired when the co-defendants accessed the accounts and then left the copies on the server? Read literally, the court seems to be saying that it is arrival at the account that matters, which sounds like no receipt by a person is needed. If so, though, I don’t know why the defendants would concede that rights would have expired in the analogous postal mail setting: The hard part of the analogy is figuring out the proper analogy for “arrival” of the mail. Is arrival for Fourth Amendment purposes the arrival at the ISP, or is arrival of the arrival of a copy at the recipient’s own machine? I think I read the court as saying the former, and I’m interested if others read the opinion the same way.