In the last three years, three federal circuits have published opinions on whether the Fourth Amendment applies to e-mail (dividing 2-1). In all three cases, the initial panel opinions were withdrawn or overturned on other grounds, leaving the issue surprisingly unsettled. This morning, the Sixth Circuit handed down an opinion by Judge Boggs that addresses the question directly and concludes that the Fourth Amendment protects e-mail held by an ISP with a full warrant requirement. The case is United States v. Warshak, a criminal appeal following conviction involving the same set of facts that were the subject of one of the earlier circuit court cases later overturned en banc. I expect today’s decision to stick around: Because the Court concluded that the good-faith exception applied in light of the government’s reliance on the Stored Communications Act, the court affirmed the conviction, meaning that only Warshak can seek review at this point (and further review seems unlikely). Here’s the key passage:
Email is the technological scion of tangible mail, and it plays an indispensable part in the Information Age. Over the last decade, email has become “so pervasive that some persons may consider [it] to be [an] essential means or necessary instrument for self-expression, even self-identification.” Quon, 130 S. Ct. at 2630. It follows that email requires strong protection under the Fourth Amendment; otherwise, the Fourth Amendment would prove an ineffective guardian of private communication, an essential purpose it has long been recognized to serve. See U.S. Dist. Court, 407 U.S. at 313; United States v. Waller, 581 F.2d 585, 587 (6th Cir. 1978) (noting the Fourth Amendment’s role in protecting “private communications”). As some forms of communication begin to diminish, the Fourth Amendment must recognize and protect nascent ones that arise. See Warshak I, 490 F.3d at 473 (“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.”).
If we accept that an email is analogous to a letter or a phone call, it is manifest that agents of the government cannot compel a commercial ISP to turn over the contents of an email without triggering the Fourth Amendment. An ISP is the intermediary that makes email communication possible. Emails must pass through an ISP’s servers to reach their intended recipient. Thus, the ISP is the functional equivalent of a post office or a telephone company. As we have discussed above, the police may not storm the post office and intercept a letter, and they are likewise forbidden from using the phone system to make a clandestine recording of a telephone call—unless they get a warrant, that is. See Jacobsen, 466 U.S. at 114; Katz, 389 U.S. at 353. It only stands to reason that, if government agents compel an ISP to surrender the contents of a subscriber’s emails, those agents have thereby conducted a Fourth Amendment search, which necessitates compliance with the warrant requirement absent some exception.
I think that is correct, for reasons I have explained before. Under the Court’s reasoning, then, 18 U.S.C. 2703(b) is unconstitutional at least in most applications– which, again, I think is correct. This is a very important opinion, and there’s a lot in there, but based on a first read it strikes me as quite persuasive and likely to be an influential decision going forward.