A recent federal appellate court decision in United States v. Warshak, et al., --- F.3d ----, 2010 WL 5071766 (6th Cir. Dec. 14, 2010), significantly impacts third-party service provider’s obligations to maintain the privacy of e-mail communications. Although the decision's full ramifications are not yet settled, the decision marks a break with the long-held view that the Stored Communications Act, 18 U.S.C. §§ 2701 et seq., allowed government officials to obtain archived e-mails stored by a third-party service provider through a subpoena or court order, without having to show probable cause for the request.

On December 14, 2010, The United States Court of Appeals for the Sixth Circuit held that the Fourth Amendment protects an individual’s e-mail communications that are stored on a third party’s server against unreasonable search and seizure. United States v. Warshak, et al., --- F.3d ----, 2010 WL 5071766 (6th Cir. Dec. 14, 2010). As a practical matter, this decision means that e-mail service providers must have been presented with a search warrant before disclosing their customer’s e-mail communications.

Background

In this case, government officials became concerned about marketing claims made by Mr. Warshak's company. During an investigation of his company, the government requested that Mr. Warshak's e-mail service provider preserve the contents of his e-mail account, pursuant to the Stored Communications Act. Several months later, the government obtained a subpoena, requiring the production of the preserved e-mails.

Relying in part on evidence from Mr. Warshak’s e-mails, the government obtained a conviction. On appeal, Mr. Warshak argued that the government violated the Fourth Amendment by requiring the preservation and production of his e-mails without a validly issued search warrant.

The Sixth Circuit agreed, finding that individuals have a reasonable expectation of privacy in their personal e-mail communications, which warranted Fourth Amendment protection. The Sixth Circuit reasoned that e-mail was analogous to other forms of communication (telephone calls and letters) that are protected by the Fourth Amendment. Because e-mail is used for similar communications purposes,  it would “defy common sense to afford e-mails lesser Fourth Amendment protection.”

Additionally, the Court noted that the subscriber agreement between a customer and an e-mail service provider would generally not be “sweeping enough to defeat the reasonable expectation of privacy in the contents of an e-mail account.” Although many subscriber agreements expressly reserve the right of the service provider to access the contents of a customer’s e-mail account, this right of access is usually not carte blanche, but rather limited to certain specified instances. The mere ability of a company to access a subscriber’s account, much like the ability of a postal carrier to open a letter and read its contents, does not curtail the Fourth Amendment protection.

Practical Implications

The Stored Communications Act expressly requires the government to obtain a search warrant in order to access e-mails stored by an e-mail service provider for less than 180 days. Now, in light of the Sixth Circuit's decision, the government must obtain a search warrant regardless of whether the government seeks recent e-mail messages or those that have been archived for over 180 days. As a result, third-party service providers must take note that any request for a customer’s e-mail communications should be carefully reviewed and such materials should be provided only in response to a search warrant. Moreover, the decision raises questions as to whether the courts could more broadly find a reasonable expectation of privacy by an individual in any personal information stored on a third-party server. As a result, Internet service providers and cloud computing providers should be particularly mindful of the potential impact of this decision.

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