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Warshak and Fourth Amendment Standards for Orders to Compel:
In this post on Warshak v. United States, I want to address a critical question that the court addressed only briefly: If A hands a package to B, and the government wants to get the package from B, what legal standard does it need to satisfy to compel the package from B? More specifically, if the government uses a subpoena or other similar order to compel a third-party record-holder to disclose records, and a person who owns the records has a reasonable expectation of privacy in their contents, what threshold does the government need to follow to compel the records to be disclosed? Reasonableness? Probable cause? Something else?

  This is a fascinating and extremely important issue for which there is remarkably little helpful precedent (for a bunch of reasons I won't go into), so this was a very important issue for the Warshak court to address. As I explained in an earlier post, here's what the Court concluded:
Category #1: When the government is seeking evidence with a subpoena and no third party has a reasonable expectation of privacy in the information, the Fourth Amendment standard is the traditional reasonableness standard.

Category #2: When the government is seeking evidence with a subpoena and a third party has a reasonable expectation of privacy in the information but is not given prior notice, then the Fourth Amendment requires probable cause.

Category #3: When the government is seeking evidence with a subpoena and a third party has a reasonable expectation of privacy in the information but is given prior notice allowing them to challenge the subpoena, then the Fourth Amendment standard drops back down to traditional reasonableness. In other words, the Fourth Amendment requires probable cause or notice, but the presence of notice drops the required legal threshold down to reasonableness.
  In this post, I want to explain which of the categories here seem correct and which seem pretty dubious. Here's the bottom line: Category #1 is well-established, Category #2 is a definite possibility, although there are certainly unmentioned precedents that point the other way, and the line between Category #2 and #3 seems to be essentially made up by the Warshak court. And if you're a civil libertarian, it's a line that results in really low privacy protection if the government gives notice.


Justin (mail):
Only one thought, really. I had interpreted the Warshak court differently, here: that is, without notice and an opportunity to be heard, you "always" need to show probable cause, because the third party cannot defend against the argument that it lacks a REP. But when there is notice, then issuance of the subpoena does not require (AT THAT POINT) probable cause, because the third party can then challenge and, if it can make the correct showing, can QUASH the subpeoena due to the absence of the probable cause.

I also interpreted, and I cannot tell from your post if we differ here, that the "reasonableness" requirement is statutory, and has nothing to do with the Fourth Amendment, that is, when notice is given, no immediate Fourth Amendment rights need be given because the party with the potential REP can assert his rights ex ante.

But if my interpretation is correct - and I don't know if I agree with it as a normative matter - then this wouldn't be an anti-civil liberterian decision at all, because the third party could always, upon showing an REP, force the government to make its probable cause showing under the fourth amendment.

My interpretations are probably wrong - I only briefly read through this part, since it wasn't as interesting to me - and now I don't really have any time to devote to it at all, so maybe you can explain why thisinterpretations was wrong.
6.26.2007 4:48pm
OrinKerr:
Interesting, Justin. I think the key passage is this:
A warrant based on probable cause would not have been necessary had the government subpoenaed Warshak or given him prior notice of its intent to seek an SCA order, because the need for this higher showing would be offset by his ability to obtain judicial review before producing any e-mails. See Phibbs, 999 F.2d at 1077 (“The subpoena has to be ‘sufficiently limited in scope, relevant in purpose, and specific in directive so that compliance [would] not be unreasonable.’ If it is a subpoena duces tecum, the government does not have to secure a judicial warrant before service is effectuated. Nonetheless, ‘the subpoenaed party [must be able to] obtain judicial review of the reasonableness of the demand prior to suffering penalties for refusing to comply.'"(citing See v. City of Seattle, 387 U.S. 541, 544 (1967)).
(emphasis added). As I read thois, notice to the user drops the standard down from the higher showing of probable cause to reasonableness, the traditional Fourth Amendment standard for subpoenas.
6.26.2007 5:00pm
John M. Perkins (mail):
Howzabout, the 3rd party gets the probable cause standard, and if the 3rd party doesn't go to court to object, then subpeonaed party's standard drops to reasonableness,

The drop is because the subpeonaed party no longer has an expectation that it is protecting a 3rd party's privacy right because that 3d party's choice not to assert that right.
6.26.2007 5:49pm
OrinKerr:
Where are you getting that, John? What choice does the third party have, and what rights can it assert? And how do you know what an expectation of another person protecting your privacy might be, and why would it matter under existing Fourth Amendment law?
6.26.2007 5:54pm
Justin (mail):
If that's the case, I disagree with the opinion on those grounds, and in any event they should have been more clear. I agree that your paragraph proves that either your interpretation was the intended one, or the majority is guilty of pretty serious poor draftmanship.

Also, somewhat related question, one that must have come up in an antitrust or other corporate context. Can the United States engage in a (sham) civil case against an individual, and then subpoena material they want to use in a subsequent criminal case, but for which they lack sufficient probable cause to obtain a warrant?

To rephrase, other than the very limited fifth amendment right against self-incrimination, are there other constitutional rights that a proper subject to a subpoena can invoke in a motion to quash or against a civil or criminal contempt charges?
6.26.2007 6:07pm
Justin (mail):
PS - please also let me know if the question of whether the civil case is a sham or not is relevant.

Finally, does the situation change for a grand jury subpoena? A trial subpoena in a criminal case?
6.26.2007 6:09pm
Philistine (mail):

Also, somewhat related question, one that must have come up in an antitrust or other corporate context. Can the United States engage in a (sham) civil case against an individual, and then subpoena material they want to use in a subsequent criminal case, but for which they lack sufficient probable cause to obtain a warrant?


Parallel criminal and SEC proceedings are fairly common. United States v. Stringer, 408 F. Supp. 2d 1083(D. Or. 2006)got some press when an indictment was dismissed due to the concealment of the criminal investigation and intentional use of the SEC civil process to circumvent criminal law protections.

There's a bunch of articles out there talking about it—a google search on {stringer parallel investigation} will get you some good explanations—at least in the SEC/Fed Criminal context.
6.26.2007 6:25pm
George Weiss (mail):
as i said before...i agreed with you on both the procedural grounds being silly and the substantive rule being silly.

you didnt mention this (yet) but another reason why he should not have prevailed on a preliminary injunction is that there isnt any real cause for harm without the injunction.

true...the court says the US has a policy to seize email..but in his case..even if the court were to impose an injunction for getting his mail by court order without notice...at this late stage in the game the US obviously has more than enough info to get a warrant..making this whole discussion meaningless to his future.

when the preliminary injunction is not supported by necessity..than it shouldn't be granted.
6.26.2007 6:43pm
Justin (mail):
Having looked over the Stringer case, and having read the See case (and an advisory opinion by the Nebraska AG written in 1981, interestingly enough), I think Warshak's reliance on See (via Phibbs) is entirely misplaced. See involved a case where the court was dealing with very sensitive questions about private homes v. businesses. It also involved primarily the question of whether a purely administrative warrant could be dealt with directly, by bypassing the courts. Warshak cited to a part of See that was expressly disclaimed as dicta. Furthermore, See involved a case in which the petitioner had a choice between a fine and compliance.

Citation or reliance on cases involving an administrative warrant is unfortunate. The federal government cannot eviscerate the probable cause requirement by "administrating" warrants under the Oklahoma Press guidelines. This is particularly true in third-party situations where disobedience is not an alternative, and in non-commercial situations as well.

Granted, this is dicta in this case as well - but very, very, sloppy dicta.
6.26.2007 6:52pm
Justin (mail):
George,

Can you explain why you think this is a reason that Warshak shouldn't have won? Although Category #2's existence is necessary for Warshak to win, Category #3 is dicta that *hurts* Warshak, since it would still allow in notice situations for the court to obtain his emails based on a lesser standard.
6.26.2007 6:54pm