Warshak v. United States:
Tomorrow the Sixth Circuit will be holding argument in Warshak v. United States
, a rather odd case involving e-mail privacy. I'm pretty sure the court won't get to the merits, but it's a notable case nonetheless.
Warshak, a suspect in a massive fraud case, sought an injunction against the government obtaining his e-mail from his ISP pursuant to the Stored Communications Act. Warshal reasoned that the Stored Communications Act lets the government obtain e-mail in some cases with less process than a full search warrant, and that if the government were to obtain his e-mail in that way that it would end up violating his Fourth Amendment rights. The district court judge in the case ended up crafting a rather strange injunction
to address possible Fourth Amendment shortcomings in the statute: the judge ruled that the United States could not obtain e-mail with less process than a warrant in any case anywhere in the Southern District of Ohio unless it gave that person prior notice and an opportunity to be heard.
The government's brief on appeal before the Sixth Circuit is here
; Warshak's brief is here
I ended up deciding not to file an amicus brief in the case because it seems very unlikely that the court will reach the merits. I don't think I have ever come across a preliminary injunction of a statute on Fourth Amendment grounds, and I imagine the court will reverse on procedural grounds without getting into the merits. That's the right call, in my view: With one quirky historical exception
, review of Fourth Amendment challenges has always been as-applied, not facial. Courts ask whether the government's conduct was an unreasonable search or seizure, not whether following the statute will in some cases or all cases violate the Fourth Amendment. (For the classic discussion of the dangers of facial review of statutes under the Fourth Amendment, see Chief Justice Warren's opinion in Sibron v. New York
A facial review in this particular case would be particularly problematic. There are no facts yet, and the Fourth Amendment is intensely fact-specific. Further, we don't even know if the government's reading of the statute is correct; there's a split in the courts as to what the relevant government authorities actually are (as explained here
). Finally, the Fourth Amendment issues in the case are both incredibly important and tremendously complex; they would require a court to wade through the reasonable expectation of privacy test in remotely stored files, the standard of reasonableness for orders to compel third party data, and third-party consent rights for system administrators — and all without any facts and no clear sense of the relevant statutory law.
I'm pretty sure the Sixth Circuit won't want to jump into all of these questions in such an odd procedural posture. It seems pretty clearly unwise to try. It makes much more sense for the court to let the case develop in the usual course: Warshak has already been indicted, and if e-mail evidence is used against him he can file a motion to suppress (and/or bring a civil claim under Bivens
If you're interested in more on the substantive legal issues here, I go into depth on a number of these issues in my casebook
; I also have an extended discussion of the role of the courts in applying the Fourth Amendment to new technologies in this article
UPDATE: There were also two amicus briefs filed on the merits of the case, just in case the panel delves into the Fourth Amendment issues. A group of privacy law and Internet law professors led by Susan Freiwald and Patricia Bellia filed one brief
; the Electronic Frontier Foundation filed another
. I think both briefs raise interesting arguments, although the issues are much more complicated than either suggests. In any event, I think the procedural posture of the case means that the Fourth Amendment issues are best left for another day.
ANOTHER UPDATE: To get an idea of how difficult some of the Fourth Amendment issues are, check out the amicus brief I wrote in 2002 in a somewhat similar Eighth Circuit case, United States v. Bach
. I wrote that amicus brief because I wanted to make sure the panel recognized the very difficult issues it was potentially facing. I thought about updating my Bach amicus brief and submitting it in the Warshak case, but I ended up being short on time (and I figured the procedural problems made it unlikely the court would get to the substance). Note also that the facts of the Bach case did not implicate the third-party consent issues raised in Warshak.
Sixth Circuit Blockbuster on E-Mail Privacy:
In an earlier blog post
on a pending case in the Sixth Circuit, Warshak v. United States, I figured there was no way the court would get to the merits of the Fourth Amendment issue lurking in the case: there were no facts yet and no decided statutory law, and surely the panel wouldn't be so reckless as to presumptively strike down a federal statute in the absence of facts or law given the procedural problems with the case. I had a funny feeling things would turn out differently when I learned who was on the panel, though, and that funny feeling turned out to be justified: the panel just issued a blockbuster decision
that tries to answer how the Fourth Amendment applies to e-mail (all without any facts, amazingly) based on arguments from amicus briefs that the government didn't address all in the context of an appeal from a preliminary injunction. Wow. More on the decision later today.
UPDATE: Here's the key part of the opinion:
[W]e have little difficulty agreeing with the district court that individuals maintain a reasonable expectation of privacy in e-mails that are stored with, or sent or received through, a commercial ISP. The content of e-mail is something that the user “seeks to preserve as private,” and therefore “may be constitutionally protected.” Katz, 389 U.S. at 351. It goes without saying that like the telephone earlier in our history, e-mail is an ever-increasing mode of private communication, and protecting shared communications through this medium is as important to Fourth Amendment principles today as protecting telephone conversations has been in the past. See Katz, 389 U.S. at 352 (“To read the Constitution more narrowly is to ignore the vital role that the public telephone has come to play in private communication.”)
Notably, the court's Fourth Amendent analysis combines aspects of the probabilistic, private facts, positive law and policy model (the above-quoted section being from the policy model section).
A Series of Posts on Warshak v. United States, the E-Mail Privacy Case:
Today's Fourth Amendment decision in Warshak v. United States
is astonishing on a number of fronts. If it stands on the books, it will revolutionize the way that Fourth Amendment challenges are brought; it will constitutionalize an area of law long thought to be statutory, invalidating some statutes along the way; and it will create the rather surprising result that Fourth Amendment protections are actually significantly stronger
online than in the physical world.
With that said, the caveat "if it remains on the books" is very important here. Whether the panel's view of the Fourth Amendment is right or wrong, Judge Martin had to reach out to decide as much as he did. In so doing, he had to make some procedural moves that strike me as pretty obviously wrong. If the Sixth Circuit en banc corrects the procedural errors, all of the panel's substantive Fourth Amendment holdings will go away.
I think Warshak will be a very good case for en banc review. Indeed, assuming the government petitions for rehearing, I would plan to write a brief urging the en banc court to grant the petition. In the next few posts I want to explain why I think the case is so remarkable, and also very troubling. My plan is to start with the procedural problems, then post on the panel's Fourth Amendment holdings, and then post on the difficulties with the panel's Fourth Amendment holdings.
The Facts and Injunction in Warshak v. United States:
In this post, I want to explore the facts and the scope of the injunction in the Sixth Circuit's big e-mail privacy decision in Warshak v. United States
. In my next post, I'll cover the court's legal analysis; and in the posts after that I'll critique them.
For the last few years, Steve Warshak has run a company selling pharmaceutical drugs such as penis enlargement pills and diet pills called Berkeley Premium Nutraceuticals. (Background here
.) In 2006, Warshak was indicted on 107 counts of wire fraud, bank fraud, money laundering, and assorted other crimes; that same year, the FTC also brought a civil action
against him and his company.
This case involves a civil suit filed by Warshak against the United States while his criminal investigation was in progress but after he had already been sued by the FTC. In 2005, the government was investigating Warshak and obtained court orders under the Stored Communications Act to compel two commercial ISPs — South Carolina-based Nuvox Communications and California-based Yahoo! — to disclose material in Warshak's e-mail ccounts. The Stored Communications Act allows the government to compel contents held by ISPs for more than 180 days using less process than a warrant, and, depending on how the statute is construed, it may also allow the government to obtain "opened" e-mail stored less than 180 days with less process as well. The government also obtained a court order permitted by 18 U.S.C. 2705 delaying notice to Warshak for 90 days.
Both Nuvox and Yahoo turned over e-mails to the government in response to the court order, although they disagreed on how to read the statute and therefore released different information. Nuvox turned over both opened e-mails and e-mails in storage for more than 180 days. California-based Yahoo, presumably under the direction of a 2004 Ninth Circuit SCA decision in a case called Theofel v. Farey-Jones, turned over only e-mails in storage for more than 180 days.
What happened next isn't exactly clear, but it looks like counsel for Warshak somehow found out about the disclosures, and that by that time more than 90 days had passed (the government apparently forgot to renew its order to delay notice, so notice had been due but not received.) Warshak, then not yet indicted, filed a civil suit alleging that the use of the Stored Communications Act to compel his e-mails violated both the SCA and the Fourth Amendment. Of importance here, Warshak also sought a preliminary injunction blocking the government from using the Stored Communications Act to compel the contents of e-mail with less process than a warrant in all future cases in the Southern District of Ohio.
The district court granted Warshak's motion in part in order to stop what it thought would be unconstitutional uses of the Stored Communications Act. Specifically, the district court enjoined the government from compelling e-mail belonging to people in the Southern District of Ohio from ISPs anwhere in the country using Stored Communications Act orders less than full warrants unless the government provided notice to the persons first. The scope of the injunction was sort of a head-scratcher, but apparently it reflected a belief that use of less than a warrant violated the Fourth Amendment without notice but that less than a warrant was okay if the suspect was given prior notice. The government then appealed, and the issue before the Sixth Circuit was whether the district court properly granted the preliminary injunction.
In the decision handed down yesterday, the Sixth Circuit mostly affirmed the district court's injunction, albeit with one modification. Under the Sixth Circuit's opinion, the federal government can't use a Stored Communications Act 2703(d) order to get the contents of "personal e-mail" held by an ISP in the name of a resident of the Southern District of Ohio unless the government either provides notice and an opportunity to be heard or else makes a fact-specific showing that the account holder maintained no reasonable expectation of privacy "with respect to the ISP." The panel explains earlier in the opinion that the test for whether a "reasonable expectation of privacy with respect to the ISP" does not exist is whether "the ISP or other intermediary clearly established and utilized the right to inspect, monitor, or audit the content of e-mails, or otherwise had content revealed to it."
If I understand what the Sixth Circuit has in mind, the government has three possible ways to compel the contents of e-mails under the Sixth Circuit's injunction: 1) via a full probable cause warrant, 2) with a 2703(d) order preceded by an ex parte proceeding in which the government first notifies the ISP and then proves to the issuing magistrate that "the ISP or other intermediary clearly established and utilized the right to inspect, monitor, or audit the content of e-mails, or otherwise had content revealed to it," or 3) if the government first notifies the customer, under a lower reasonableness standard as a matter of constitutional law and a 2703(d) specific and articulable facts standard as a matter of statutory law.
Oddly, the injunction does not seem to address the other path the SCA permits, namely compelling contents with a subpoena. The injunction doesn't mention subpoenas, although the opinion's reasoning suggests that it should. I'm not sure what to make of that.
The Legal Rulings in Warshak v. United States:
In my last post
, I explained the facts of Warshak v. United States
, the Sixth Circuit's new decision that largely rewrites the law of e-mail privacy. In this post, I want to explain the opinion's legal rulings.
Two caveats before I begin. First, I'll mostly (although not entirely) save the commentary for later. The Warshak opinion announces five or six novel and far-reaching propositions of law, and I think it's important for us to start with an understanding of what those rulings are before we get to whether the court had a solid basis or announcing them. Second, I should emphasize that there may be room for disagreement as to the meaning of some of the passages. The opinion is quite complex and not exactly a model of clarity, and I struggled over some of the passages. Given this, I hope those who disagree with my interpretations will politely explain why in the comment thread.
On to the opinion, starting with procedural issues and then moving on to the Fourth Amendment rulings.
The Procedural Rulings
Let's get the procedural, non-Fourth Amendment matters out of the way first. These parts are less high-profile than the substantive Fourth Amendment issues, but they're the rulings that let the court get to the Fourth Amendment issues so we need to appreciate them to understand the case. In particular, there are two key procedural rulings: (1) When a person challenges a statute under the Fourth Amendment, the court has the power to consider all of the possible applications of the challenged statute, determine which ones violate the Fourth Amendment, and then enjoin the ones that would violate the Fourth Amendment while allowing the statute to be used in ways that the court concludes would be constitutional.
According to the court, individuals can bring facial challenges to statutes under the Fourth Amendment "where the statute, on its face, endorses procedures to authorize a search that clearly do not comport with the Fourth Amendment." However, courts ruling on such facial challenges do not need to uphold or strike down statutes in their entirety. Rather, courts can impose a "narrow" type of facial invalidation in which the court can determine which applications of the statute would be constitutional and which would be unconstitutional. The court can then prohibit only the unconstitutional applications of the statute and permit the rest. (2) The plaintiff in this case has standing and his claims are ripe to challenge future acts under the SCA, and the balance of factors favors an injunction here.
Warshak has standing to challenge the government's future conduct because the government has obtained his e-mails twice before and might do so again because the statute permits the government's action. Although Warshak has been indicted and the case has moved on to a different stage, it is possible that the government might try to get his e-mail again using the same technique it used in 2005. His claims are not excessively hypothetical because it seems likely that future efforts to obtain Warshaks e-mail probably would be pretty similar to the two past ones. Further, the government wants to act in ways that violate the Fourth Amendment, which is contrary to the public interest and favors issuing the injunction.The Fourth Amendment Rulings
On to the Fourth Amendment rulings. They are: (1) The threshold that the Fourth Amendment requires when compelling evidence with a subpoena or similar order depends on who has privacy rights and whether the persons who have privacy rights have been given prior notice of the government's action.
The court envisions three different categories of privacy protection for orders to compel: First
, 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. Second
, 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. Third
, 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.
(2) E-mail users always have a reasonable expectation of privacy against the outside world in their e-mail.
The contents of stored e-mail held by an ISP are like the contents of landline telephone calls, sealed letters, or sealed packages. The fact that ISPs have the technical ability to access e-mail doesn't matter, any more than does the fact that the Post Office has the technical ability to break open your envelopes and read your postal mail. An ISP might access subscriber and non-content information associated with an e-mail, but the ISP has not been granted access to the e-mail's contents and there is a "societal expectation" that they normally will not access contents.
Notably, however, a user's reasonable expectation of privacy in e-mail is not the same as a person's reasonable expectation of privacy in physical spaces. Rather, it is broader, because computer accounts are different from physical spaces. In the physical world, a person's reasonable expectation of privacy is contingent on his relationship to the place. Thus, Katz had a reasonable expectation of privacy in the phone booth only temporarily when he was making a call; a hotel guest loses his reasonable expectation of privacy after checkout time; and a burglar has no reasonable expectation of privacy in a house he has burglarized. Fourth Amendment rights in physical spaces depend on whether the person has a legitimate relationship with the space sufficient to establish constitutional proection.
According to the court, these concepts do not apply to computer accounts. The court reasons that these Fourth Amendment rules in physical space exist because physical space can be used by multiple people. For example, a hotel guest loses a reasonable expectation of privacy at checkout time because the next guest is coming and soon will be putting his stuff in the room. But e-mail is different: e-mail accounts are not ordinarilty used by multiple people. If you stop paying the bill for your ISP account, you wouldn't expect some other Internet user to gain access to your account and start looking through your e-mail! As a result, you maintain a reasonable expectation of privacy in your account even if you signed up for the account fraudulently or you decided to abandon the account.
Indeed, even a hacker likely has a reasonable expectation of privacy in the contents of e-mails in an account he has hacked. A thief does not have a reasonable expectation of privacy in the contents of a computer he has stolen. But if a hacker breaks into an account and puts his private information there, the analogy to a stolen physical computer is unhelpful because the hacker didn't actually "steal" the e-mail account or the server that hosts it. (3) A clear statement by an ISP in Terms of Service that it regularly accesses e-mail content combined with a) evidence that users are aware of that policy and b) evidence that the ISP utilizes the policy does not eliminate Fourth Amendment protection altogether, but does eliminate a reasonable expectation of privacy "vis a vis the provider," allowing a lower subpoena standard to be used to compel evidence from the ISP.
According to the court, there are two kinds of reasonable expectations of privacy: those generally and those vis-a-vis ISPs. (Editorial note: This is wrong as a matter of basic Fourth Amendment law; there is no such thing as reasonable expectations of privacy vis a vis different people or entities. But I promised not to talk about the merits here, so I'll get to that in a future post.) In some circumstances, ISP monitoring can eliminate the user's reasonable expectation of privacy vis a vis the ISP although not vis a vis the outside world. The key line is between "total access" and "less in-depth screening"; "total access" eliminates the REP with respect to the provider but "less in-depth screening" does not.
The court elaborates on the line and offers the following constitutional test: to establish that a user has waived a reasonable expectation of privacy in e-mail vis a vis the provider, the goverment must show "based on specific facts," "that the ISP or other intermediary clearly established and utilized the right to inspect, monitor, or audit the contents, or otherwise had content revealed to it." If the government can establish this, then the user's reasonable expectation of privacy "vis a vis the provider" is waived, and the Fourth Amendment is now satisfied if the subpoena or order to compel is obtained under a reasonableness standard rather than probable cause.
(4) Computer scanning of e-mail for key words, types of images or "similar indicia of wrongdoing" in a way that does not disclose contents to an actual person does not invade any Fourth Amendment rights.
According to the court, such computer-driven screening is like post office screening of packages for evidence of drugs or explosives. Because such screening does not trigger the Fourth Amendment — on a Caballes dog-sniff rationale, I assume — digital screening does not do so either. (Presumably this means that the any NSA monitoring of e-mail for keywords or the use of FBI devices installed at ISPs to scan e-mail and attachments for digital images of child pornography do not implicate the Fourth Amendment. However, the court does not elaborate on this point.)
(5) When e-mail is obtained pursuant to a search warrant, the particularity requirement requires that warrants must "target e-mails that could reasonably be believed to have some connection to its specific investigation."
When the government has probable cause to believe evidence of crime or contraband is in an e-mail account, it cannot request the entire e-mail account. The warrant has to be selective and only ask for specific documents or categories of documents. (Given that ISP employees execute warrants for e-mail accounts, rather than police officers, I don't know how this is supposed to work. Perhaps cops need to actually come to the ISP and screen the e-mails onsite or else the police must start outsourcing minimization to the ISP employees? Or can the ISP send the entire contents to the FBI, which will then execute the search on the account based on the particular warrant much as hey would a PC? More on this later, too.) The court suggests that magistrates should consider limiting e-mail warrants based on the date of the e-mail, the "to" and "from" adress, or keywords, but does not impose a requirement of that.* * * *
So there you have it. As you can see, the court sure managed to pack in a lot of law into a 20-page opinion. I don't think I'm exagerrating to say it's an entirely new regime for e-mail privacy. In my next post, I'll finally start critiquing the opinion on the merits. I plan to start by critiquing the court's procedural rulings, some of which struck me as pretty obviously wrong and contrary to fairly clear Supreme Court precedent that the panel opinion didn't cite. Stay tuned....
The Procedural Errors of Warshak v. United States:
In this post on Warshak
, I want to address why I think the case was obviously wrongly decided as a procedural matter. The court simply had no business trying to imagine all the ways the statute might be applied and resolving the constitutionality of all of those hypothetical applications. No court has ever done that before, and it's a dramatic break with decades of Fourth Amendment practice that the Supreme Court long ago foreclosed. Not only that, as I have argued in this 2004 law article
, it's a reckless practice as a matter of policy: courts simply lack the institutional ability to enact entire surveilance regimes all at once, and any effort to do so is bound to create major headaches (as this one will, for reasons I'll get to in a future post).
Let's start with some background about how Fourth Amendment law is made. The basic starting point of Fouth Amendment decisionmaking is that it is based on concrete facts: a search or seizure occurs and then its legality is challenged, either pursuant to a civil action or a motion to suppress. The court holds a hearing, figures out exactly what happened, and then applies the Fourth Amendment to the facts as found.
This does not mean that prospective injunctive relief does not exist in Fourth Amendment law; but it does mean it is rare and its scope is very limited. Courts consider injunctive relief for Fourth Amendment violations when the government has an ongoing program: For example, the police might have enacted a new program putting up a particular kind of road block, or a school might have a policy requiring drug testing of public school students. In these cases, however, the scope of the injunctive relief is always very limited: the court considers whether the recurring known facts as they exist
render the government conduct constitutional or unconstitutional. The court's role is limited to giving the existing program the Constitutional thumbs-up or thumbs-down.
The Warshak court took a radically different approach. According to Judge Martin, courts can rule on facial challenges to statutes that regulate searches and seizures. In this setting, courts have the power to survey all of the possible applications of the statute and determine which ones will be constitutional and which ones won't be; the court can then draft the appropriate injunction to ensure the government oly acts constitutionality in the types of cases potentially covered by the statute. The Court drew this power from two cases: Berger v. New York, 388 U.S. 41 (1967), which considered a facial challenge to a New York wiretapping statute, and Ayotte v. Planned Parenthood, 546 U.S. 320 (2006), the recent abortion case authorizing lower courts to craft injunctive relief for the use of a challenged abortion statute to a set of unconstitutional applications of the statute.
But this is pretty clearly incorrect. It is true that the Supreme Court did once entertain a facial Fourth Amendment challenge to a statute, in Berger
. (There were very unusual circumstances, in case you're interested: Congress was considering the wiretapping legislation ultimately enacted as Title III, and the Justices wanted to and did get their 2 cents in about what it would say. ) However, the Court quickly shut the door on facial Fourth Amendment challeges just a year later in Sibron v. New York, 392 U.S. 40 (1968)
To return to the truncated post, click here.
was a companion case to Terry v. Ohio
, and it applied the Terry framework to two stops and frisks in New York state. Unlike the Ohio stops and frisks in Terry, however, the stops and frisks in Sibron were made pursuant to the terms of New York's stop and frisk statute, Section 180-a. Section 180-a authorized the police to "stop" individuals, "demand" explanations from them and "search" them for "dangerous weapons" if "reasonable suspicion" existed. The lawyers on both side of Sibron
, saw that the Court approached the New York wiretapping statute as a facial challenge, and wrote their briefs on the assumption that New York's stop and frisk statute would be evaluated facially as well.
In an opinion by Chief Justice Warren, the Court concluded that it was improper to subject a statute to facial Fourth Amendment challenge outside the fairly specific context of a statute authorizing the issuance of search warrants. Here's the Court's anaylysis:
The parties on both sides of these two cases have urged that the principal issue before us is the constitutionality of 180-a "on its face." We decline, however, to be drawn into what we view as the abstract and unproductive exercise of laying the extraordinarily elastic categories of 180-a next to the categories of the Fourth Amendment in an effort to determine whether the two are in some sense compatible. The constitutional validity of a warrantless search is pre-eminently the sort of question which can only be decided in the concrete factual context of the individual case. In this respect it is quite different from the question of the adequacy of the procedural safeguards written into a statute which purports to authorize the issuance of search warrants in certain circumstances. See Berger v. New York, 388 U.S. 41 (1967). No search required to be made under a warrant is valid if the procedure for the issuance of the warrant is inadequate to ensure the sort of neutral contemplation by a magistrate of the grounds for the search and its proposed scope, which lies at the heart of the Fourth Amendment. E. g., Aguilar v. Texas, 378 U.S. 108 (1964); Giordenello v. United States, 357 U.S. 480 (1958). This Court held last Term in Berger v. New York, supra, that N. Y. Code Crim Proc. 813-a, which established a procedure for the issuance of search warrants to permit electronic eavesdropping, failed to embody the safeguards demanded by the Fourth and Fourteenth Amendments.Sibron
Section 180-a, unlike 813-a, deals with the substantive validity of certain types of seizures and searches without warrants. It purports to authorize police officers to "stop" people, "demand" explanations of them and "search [them] for dangerous weapon[s]" in certain circumstances upon "reasonable suspicion" that they are engaged in criminal activity and that they represent a danger to the policeman. The operative categories of 180-a are not the categories of the Fourth Amendment, and they are susceptible of a wide variety of interpretations. New York is, of course, free to develop its own law of search and seizure to meet the needs of local law enforcement, see Ker v. California, 374 U.S. 23, 34 (1963), and in the process it may call the standards it employs by any names it may choose. It may not, however, authorize police conduct which trenches upon Fourth Amendment rights, regardless of the labels which it attaches to such conduct. The question in this Court upon review of a state-approved search or seizure "is not whether the search [or seizure] was authorized by state law. The question is rather whether the search was reasonable under the Fourth Amendment. Just as a search authorized by state law may be an unreasonable one under that amendment, so may a search not expressly authorized by state law be justified as a constitutionally reasonable one." Cooper v. California, 386 U.S. 58, 61 (1967).
Accordingly, we make no pronouncement on the facial constitutionality of 180-a. The constitutional point with respect to a statute of this peculiar sort, as the Court of Appeals of New York recognized, is "not so much . . . the language employed as . . . the conduct it authorizes." People v. Peters, 18 N. Y. 2d 238, 245, 219 N. E. 2d 595, 599, 273 N. Y. S. 2d 217, 222 (1966). We have held today in Terry v. Ohio, ante, p. 1, that police conduct of the sort with which 180-a deals must be judged under the Reasonable Search and Seizure Clause of the Fourth Amendment. The inquiry under that clause may differ sharply from the inquiry set up by the categories of 180-a. Our constitutional inquiry would not be furthered here by an attempt to pronounce judgment on the words of the statute. We must confine our review instead to the reasonableness of the searches and seizures which underlie these two convictions.
, 392 U.S. at 59-62.
So how does Judge Martin deal with Sibron
, which seems to limit Berger
-like facial challenges to testing "the procedure for the issuance of the warrant . . . to ensure the sort of neutral contemplation by a magistrate of the grounds for the search and its proposed scope" — obviously not something implicated by this case?
Well, he doesn't. Judge Martin doesn't discuss Sibron
. The case is not even cited. Instead, Judge Martin sees Berger
as standing for the broad proposition that facial challenges are permitted "where the statute, on its face, endorses procedures to authorize a search that clearly do not comport with the Fourth Amendment." But isn't that broad reading pretty clearly foreclosed by Sibron
Judge Martin's opinion also ignores the Supreme Court's recent statements discouraging and narrowing the availability of facial challenges in Sabri v. United States, 541 U.S. 600 (2004)
. In Sabri
, a criminal defendant brought a facial challenge to a bribery statute alleging that the statute lacked the needed connection to interstate commerce. The opinion of the Court included a discussion of when facial challenges are permitted; although the reasoning is general, I think it is nonetheless instructive
We add an afterword on Sabri’s technique for challenging his indictment by facial attack on the underlying statute, and begin by recalling that facial challenges are best when infrequent. See, e.g., United States v. Raines, 362 U.S. 17, 22 (1960) (laws should not be invalidated by “reference to hypothetical cases”); Yazoo & Mississippi Valley R. Co. v. Jackson Vinegar Co., 226 U.S. 217, 219—220 (1912) (same). Although passing on the validity of a law wholesale may be efficient in the abstract, any gain is often offset by losing the lessons taught by the particular, to which common law method normally looks. Facial adjudication carries too much promise of “premature interpretatio[n] of statutes” on the basis of factually bare-bones records. Raines, supra, at 22. . . .
Facial challenges of this sort are especially to be discouraged. Not only do they invite judgments on fact-poor records, but they entail a further departure from the norms of adjudication in federal courts: overbreadth challenges call for relaxing familiar requirements of standing, to allow a determination that the law would be unconstitutionally applied to different parties and different circumstances from those at hand. See, e.g., Chicago v. Morales, 527 U.S. 41, 55—56, n. 22 (1999) (plurality opinion). Accordingly, we have recognized the validity of facial attacks alleging overbreadth (though not necessarily using that term) in relatively few settings, and, generally, on the strength of specific reasons weighty enough to overcome our well-founded reticence. See, e.g., Broadrick v. Oklahoma, 413 U.S. 601 (1973) (free speech); Aptheker v. Secretary of State, 378 U.S. 500 (1964) (right to travel); Stenberg v. Carhart, 530 U.S. 914, 938—946 (2000) (abortion); City of Boerne v. Flores, 521 U.S. 507, 532—535 (1997) (legislation under §5 of the Fourteenth Amendment). See generally Fallon, As-Applied and Facial Challenges and Third-Party Standing, 113 Harv. L. Rev. 1321, 1351 (2000) (emphasizing role of various doctrinal tests in determining viability of facial attack); Monaghan, Overbreadth, 1981 S. Ct. Rev. 1, 24 (observing that overbreadth is a function of substantive First Amendment law). Outside these limited settings, and absent a good reason, we do not extend an invitation to bring overbreadth claims.
is not mentioned in the Warshak
After determining that Berger
permits a facial challenge to a statute on Fourth Amendment grounds, Judge Martin next invokes Ayotte v. Planned Parenthood
for the view that a court can craft a narrow injunctive remedy focused on unconstitutional applications of the challenged statute. Ayotte
involved abortion, one of the few areas in which facial challenges are common. But if you read Ayotte
, it expressly counsels against doing what the panel did in Warshak: the Court warns that courts could not "rewrite" statutes to "salvage" them. According to Ayotte
, partial invalidation of statutes should be limited to reinforcing clear and established constitutional lines in ways so as to reconstruct legislative intent with the unconstitutional applications removed. Justice O'Connor explains:
[M]indful that our constitutional mandate and institutional competence are limited, we restrain ourselves from “rewrit[ing] state law to conform it to constitutional requirements” even as we strive to salvage it. Virginia v. American Booksellers Assn., Inc., 484 U.S. 383, 397 (1988). Our ability to devise a judicial remedy that does not entail quintessentially legislative work often depends on how clearly we have already articulated the background constitutional rules at issue and how easily we can articulate the remedy. In United States v. Grace, supra, at 180—183, for example, we crafted a narrow remedy much like the one we contemplate today, striking down a statute banning expressive displays only as it applied to public sidewalks near the Supreme Court but not as it applied to the Supreme Court Building itself.
We later explained that the remedy in Grace was a “relatively simple matter” because we had previously distinguished between sidewalks and buildings in our First Amendment jurisprudence. United States v. Treasury Employees, 513 U.S. 454, 479, n. 26 (1995). But making distinctions in a murky constitutional context, or where line-drawing is inherently complex, may call for a “far more serious invasion of the legislative domain” than we ought to undertake. Ibid.
This is of course exactly the case of e-mail privacy. I spend a full 50 pages in my 2006 Computer Crime Law casebook
pondering the many possible arguments for different ways the Fourth Amendment might apply to e-mail (from pages 394-445). My ultimate conclusion is that the law is completely unknown and that a remarkable range of outcomes are possible based on existing authorities. This drives students nuts; as you might imagine, they want some answers. But I can't give them certainty that doesn't exist.
What does Judge Martin make of the passage in Ayotte
warning judges away from offering comprehensive rules when the law is murky or inherently complex? We don't know; he does not mention it. Judge Martin interprets Ayotte
as bestowing upon him broad remedial powers, but he does not address the limitations on those powers found in the opinion itself.
In sum, the Warshak
court gave itself powers that Supreme Court precedent clearly forecloses. Courts simply lack the power to decide entire fields of Fourth Amendment law based on imagined facts, and the Warshak
court lacked the power to do so here. Warshak has already brought a civil suit challenging the two accesses of his e-mail accounts that occurred in 2005, and any judicial pronouncement of how the Fourth Amendment applies to compelling e-mail should be limited to the facts of the searches that occurred. )
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.
Let's run through the different categories here, and see which are well-established and which are new.
Category #1 above is well-established, and the cases the Warshak court cites are mostly about that category. For example, the Warshak court relies heavily on United States v. Phibbs, 999 F.2d 1053, 1077 (6th Cir.1993), a case involving administrative subpoenas served on a third party businesses in a criminal case. A defendant named Rojas had been indicted for drug crimes, and the DEA used administrative subpoenas to compel Rojas' credit card and telephone records. Rojas objected that the subpoenas were improper, but the court held that Rojas could not object because he didn't have a reasonable expectation of privacy in the records and this lacked standing to challenge the subpoena. This holding was unremarkable and obviously right. That was the underlying principle of United States v. Miller
: if the government subpoenas your information and you have no reasonable expectation of privacy in that information, you have no standing to object to the subpoena. Thus the subpoena is covered by the usual reasonableness standard.
What's remarkable about Warshak is that the panel seems to simply assume Category #2 and the line between Category #2 and #3. Here's what the court says about Category #2:
The government's compelled disclosure argument, while relevant, therefore begs the critical question of whether an e-mail user maintains a reasonable expectation of privacy in his e-mails vis-a-vis the party who is subject to compelled disclosure-in this instance, the ISPs. If he does not, as in Phibbs or Miller, then the government must meet only the reasonableness standard applicable to compelled disclosures to obtain the material. If, on the other hand, the e-mail user does maintain a reasonable expectation of privacy in the content of the e-mails with respect to the ISP, then the Fourth Amendment's probable cause standard controls the e-mail seizure.
This is certainly a possible rule. It's what the lower court assumed in the Miller decision that the Supreme Court overruled. But why the standard should be probable cause isn't exactly obvious, and there are a bunch of precedents that point in the opposite direction and say the standard should be reasonableness. See, e.g., In re John Doe Proceeding, 680 N.W.2d 792 (Wis. 2004); United States v. Barr, 605 F. Supp. 114 (S.D.N.Y. 1985). These cases treat subpoenas as subpoenas, and don't automatically jump the standard up to probable cause just because a third party has a reasonable expectation of privacy in the information sought.
Perhaps the Warshak court has a good basis for its rule — I can think of some — but it would be nice if the court had settled this very important point by explaining the issue and bothering to discuss the contrary authorities rather than just stating the conclusion.
A few pages later, in an apparent aside in an unrelated section of the opinion, the court then carves out Category #3:
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)).
Woah, here, stop the presses. Why should notice "offset" the need for probable cause? If the standard of judicial review is mere reasonableness, the user presumably is going to lose every time. In the context of subpoenas, reasonableness traditionally just means that the subpoena is relevant to an investigation (even if it just goes to show no crime has been committed). So in cases where the government can provide notice, e-mail presumably is protected only very weakly: the government can provide you with notice that it is getting your e-mails just to make sure you're not committing any crimes. (At least that would be the traditional approach; I'm assuming the Warshak court doesn't also have a new theory of reasonableness for subpoenas, although I wouldn't be surprised if they had that, too.)
Why did the Warshak court think that notice offsets the need for probable cause? Let's unpack the cases a bit to see how much law the court is making (and with how little basis in preexisting caselaw). The Warshak court cites and quotes Phibbs
, which in cited See v. City of Seattle
. See v. City of Seattle
was case on the Fourth Amendment requirements of administrative subpoenas, which are subpoenas issued by an administrative agency rather than a court. The See Court stated:
It is now settled that, when an administrative agency subpoenas corporate books or records, the Fourth Amendment requires that the subpoena be sufficiently limited in scope, relevant in purpose, and specific in directive so that compliance will not be unreasonably burdensome.
The Phibbs case dealt with both administrative subpoenas and grand jury subpoenas (issued, at least as a matter of form, in the name of the grand jury acting through the clerk of the court). In a general section on the law of administrative subpoenas and grand jury subpoenas, the Phibbs court wrote:
Recipients of administrative subpoenas, such as those issued in accordance with 21 U.S.C. § 876, are afforded certain protections under the Fourth Amendment to the United States Constitution. The subpoena has to be “sufficiently limited in scope, relevant in purpose, and specific in directive so that compliance [would] not be unreasonable.” See v. City of Seattle, 387 U.S. 541, 544, 87 S.Ct. 1737, 1740, 18 L.Ed.2d 943 (1967).
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.” Id. at 545, 87 S.Ct. at 1740.
I wonder, how does any of this support the claim that notice substitutes for probable cause? If I had to guess, the Warshak court is misunderstanding who "the subpoenaed party" is in cases involving subpoenas. The subpoenaed party is the recipient of the subpoena, which in this case would be the ISP, rather than the user who has a reasonable expectation of privacy in the information, which in this case would be the user. The basic idea, going back at least as far as the Supreme Court's 1906 opinion in Hale v. Henkel, is that the party who is burdened with production has a right to challenge the subpoena. If I'm reading Warshak correctly, the court is assuming that the Internet user is the "subpoenaed party" because the subpoena ultimately relates to him; it then reads the line from See
about challenging the reasonableness of subpoenas and imagines that the rule should be that a notified user can only challenge reasonableness rather than probable cause. But that's not what See was about, as I understand it; the idea that notice substitutes for probable cause seems new.
Perhaps the Warshak court believes that there is a rough equivalence between the two standards as matter of policy. After all, in a traditional Fourth Amendment case involving no third-party storage, the government could either use a probable cause search warrant or else serve a subpoena that then triggers a reasonableness standard. So maybe they're sort of the same? But the equivalence here doesn't work, I think. What's missing is the Fifth Amendment. The major barrier to the use of subpoenas to compel evidence from suspects is the Fifth Amendment, not the Fourth Amendment. Responding to the subpoena would constitute your compelled testimony as to the authenticity, identity, and existence of the evidence that the government is seeking against you. See United States v. Hubbell.
As a result, it can't ordinarily use subpoenas to compel evidence from suspects. However, if you give your information to a third party, there are no Fifth Amendment limitations on the third-party responding to a subpoena for your stuff: Fifth Amendment rights are personal and can't be asserted vicariously under Fisher v. United States
. Once you have information in the hands of a third-party, the Fifth Amendment issues go away.
This means that there really is no equivalence between the Warshak court's Categories #2 and #3. Category #3 simply makes the privacy protection granted in the "reasonable expectation of privacy" portion of the opinion a lot weaker than you would otherwise expect whenever the government knows who the bad guy is and can therefore give notice. And it does so without a particular good reason I can identify or much of a basis in the case law for making the distinction. Perhaps there is a rationale for the three categories that Judge Martin has in mind, or perhaps he is just misreading the precedents; we don't know, as this is only one of many critical questions packed into the short decision without any siginificant discussion.
Petition for Rehearing En Banc in Warshak v. United States:
Last week the United States filed a petition for rehearing en banc in Warshak v. United States
, the e-mail privacy case that I have blogged a lot about (and had several more posts planned on before other events intervened — I hope to finish up the series soon). You can read the petition for rehearing here
As you might guess based on my previous blogging, I think the government's petition for rehearing should be granted. Indeed, I will soon be filing an amicus brief to that effect on my own behalf. If all goes smoothly, I should be mailing out the brief later today. I'll post a copy here after it's out the door.
My Amicus Brief in Warshak v. United States:
Last week I submitted an amicus brief in favor of the government's petition
for rehearing in Warshak v. United States
, the e-mail privacy case currently pending before the Sixth Circuit. I have posted a copy of my brief here
. (I was having trouble with the page numbers, so the version that appears here is unpaginated — sorry).
My understanding is that the Sixth Circuit has ordered Warshak's attorney to file a response to the government's petition for rehearing by August 27th. I'll plan to post a copy of that brief when I get it, along with any additional amicus briefs that may be filed concerning the petition for rehearing.
Warshak Files Reponse; Sixth Circuit Rejects All Amicus Submissions:
Here's an update on Warshak v. United States
, the Sixth Circuit case on e-mail privacy that I have blogged a lot about. There are two significant developments in the case. The first development is that counsel for Warshak filed his opposition to the petition for rehearing last week. You can read that brief here
. I think it's quite weak for all the reasons I have explained in my amicus brief
, as well as in my many posts on these issues, but at least we know what arguments Warshak has to make.
The second development is that the Sixth Circuit rejected all three amicus briefs submitted for or against rehearing. On Wednesday, both the Electronic Frontier Foundation (joined by CDT and the ACLU of Ohio) and a group of law professors tried to file amicus briefs opposing the petition for rehearing. Here
is EFF's submission; here
's the lawprof brief. Yesterday we learned that the Sixth Circuit is refusing all three briefs; the EFF brief, the lawprof group brief, and my own brief.
Why the Sixth Circuit rejected all the amicus briefs remains somewhat unclear, but there is reason to think the court interpreted Fed R. App. Pro. 40(a)(3) to disallow amicus briefs at the rehearing stage. That Rule states that "[u]nless the court requests, no answer to a petition for panel rehearing is permitted." In this case, the court requested an answer to the petition for rehearing: Warshak was ordered to respond. However, there's some reason to think that the court is interpreting amicus briefs as "answers" and reading the Rule to mean that no amicus briefs are permitted with respect to any rehearing issues unless the court specifically invites that particular brief. Before I filed my brief I had reason to think this wasn't the Sixth Circuit's approach to the rule, but as best I can tell that is now the court's interpretation. (Some circuits have local rules that specifically address this issue; the Sixth Circuit does not.)
Obviously this is somewhat frustrating in light of the time and resources to write the brief and submit it, as well as in light of the strong public interest in the judges having a better understanding of this case. In any event, I hope the Sixth Circuit appreciates the substantial and important problems with the panel decision and grants the petition for rehearing. And on the bright side, I understand the $200 I spent to join the Sixth Circuit bar will bring me a lovely certificate suitable for framing.
Sixth Circuit Grants Petition for Rehearing En Banc in Warshak v. United States:
I have just heard that the Sixth Circuit has granted the United States' petition for rehearing en banc
in Warshak v. United States
, the important e-mail privacy case that I have blogged about extensively over the last few months. The docket entry states that "The previous decision and judgment of this court is vacated, [and] the mandate is stayed." The parties' supplemental briefs are due November 8.
This is a promising development for the law, I think, for the reasons I explained in my attempted amicus brief
. On the downside, now I have to call up West and do some quick surgery on the materials covering e-mail privacy that I had written for the forthcoming new Third Edition of the LaFave/Israel/King Criminal Procedure treatise. (More work, always more work.)
I'll probably have some more on the general question of what the Sixth Circuit might do in the case, as well as the foundational question of how the Fourth Amendment*should* apply to e-mail, in the next few weeks; I've been fiddling with a law review article on the latter, and now that the issue has a bit more breathing space I'll probably blog some of my tentative thoughts on the issue to test the waters. In the meantime I just wanted to flag the Court's decision to rehear the case en banc.