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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.
Siona Sthrunch (mail):
The phrase in paragraph two, "Warshak has run a company . . . as the head of a company," is unclear to me. The full sentence reads:

"For the last few years, Steve Warshak has run a company selling fake pharmaceutical drugs such as penis enlargement pills and diet pills as the head of a company called Berkeley Premium Nutraceuticals."

Also, the phrase in the last sentence of the fourth paragraph, "for more than days," appears to omit unintentionally the number of days.
6.19.2007 5:02am
Siona Sthrunch (mail):
The above comment can be deleted - I just saw the note that such comments are to be emailed to the author.
6.19.2007 5:03am
riptide:
Several statements above suggest that you didn't fully read and/or comprehend the court's decision (regardless of whether it was ultimately right or wrong). Ie:

"What happened next isn't exactly clear, but it looks like counsel for Warshak somehow found out about the disclosures..." No, what happened is that the US disclosed the process, but only after a year had passed (rather than 90 days). Clearly summarized in the background portion of the brief.

"Oddly, the injunction does not seem to address the other path the SCA permits, namely compelling contents with a subpoena. " The opinion explains that the most troublesome part of the SCA is its ex parte nature. A subpoena provides notice to the customer and an opportunity to contest the seizure (on the basis of the 4th or otherwise).
6.19.2007 8:07am
George Weiss (mail):
"Oddly, the injunction does not seem to address the other path the SCA permits, namely compelling contents with a subpoena. " The opinion explains that the most troublesome part of the SCA is its ex parte nature. A subpoena provides notice to the customer and an opportunity to contest the seizure (on the basis of the 4th or otherwise).

well said
6.19.2007 8:51am
Jim Harper (mail) (www):
"It's understandable that he would seek this kind of relief: the government was hot on Warshak's trail, just months away from filing a 107-count indictment against him, and I assume he wanted to keep the feds away from any other e-mail accounts he might have." This is your recitation of the facts? How about, "A guy who is about to be indicted is obviously a criminal, so his assertion of constitutional and statutory protections for privacy is obviously going to be unmeritorious. I mean, he's a criminal - because he was about to be indicted."
6.19.2007 9:13am
LXJenkins:
Jim Harper - You took the words right out of my mouth...er, fingers.
6.19.2007 9:34am
Waldensian (mail):
Prof. K, heard you on NPR this morning. They didn't exactly give you much time for in-depth analysis, but at least you managed a sound bite mentioning the possibility the decision could be overturned.

FWIW, I didn't read the "It's understandable..." passage to imply that the guy is a criminal. If I were innocent of any wrongdoing, and my e-mail was being targeted by the feds, I would STILL want to keep them away from my e-mail.
6.19.2007 10:50am
Justin (mail):
Orin (piling on Jim Harper's point), by making it seem like a warrant would have been really easy to get, you're going to at leasst somewhat undercut your argument when you go on to explain how the holding is so troublesome.
6.19.2007 10:52am
Justin (mail):
Orin (piling on Jim Harper's point), by making it seem like a warrant would have been really easy to get, you're going to at least somewhat undercut your argument when you go on to explain how the holding is so troublesome.
6.19.2007 10:52am
OrinKerr:
Folks,

I'm puzzled by a bunch of these comments. I was trying to explain the facts by reading all of the briefs and culling together what they said rather than what the 6th Circuit said; sorry if that broader understanding of the facts is objectionable, but if it is I would be interested to know why.

A few specific comments:

1) Riptide, that's not what Warshak says hapened in his brief. And no, a subpoena to the ISP wouldn't give notice to Warshak.

2) Jim, if I have been sued by the FTC and I know I am about to be indicted, I would be very interested in trying to keep the government away even if I am completely innocent. It goes without saying that Warshak is innocent until proven guilty; I am not sure why you are reading my post to suggest the contrary.

3) Justin, I don't know how I can undercut an argument you haven't seen yet.
6.19.2007 11:20am
Justin (mail):
Orin,

Without having seen your argument, if your argumentis not going to be based, at least in part, on the notion that requiring the government to get a warrant will hamper the government's ability to perform legitimate investigatory duties, I doubt its going to be that persuasive. Since you generally, even when we disagree, write persuasively and comprehensively, I made the assumption that your argument at least takes that question into consideration.
6.19.2007 11:42am
Justin (mail):
Gr. Embarrasing typo - I meant to say that I doubt its going to be unpersuasive.
6.19.2007 11:51am
AF:
And no, a subpoena to the ISP wouldn't give notice to Warshak.

Doesn't the statute require notice to the subscriber prior to obtaining email records by subpoena from an ISP --- unless the enjoined delayed-notice provision is used? (This is a real not rhetorical question).
6.19.2007 12:09pm
LXJenkins:
Orin said:
Jim, if I have been sued by the FTC and I know I am about to be indicted, I would be very interested in trying to keep the government away even if I am completely innocent. It goes without saying that Warshak is innocent until proven guilty; I am not sure why you are reading my post to suggest the contrary.

Although I can't speak for Jim, I think your use of the phrase "hot on Warshak's trail" suggests that Warshak was doing something illegal and that he was trying to throw the authorities off - rather than the benign intention of protecting his right to privacy.
6.19.2007 12:19pm
MassRepUnsure (mail):
This is my reading, which matches Riptide's:

Administrative subpoenas are obtained through 2703(b)(1)(B)(i), which requires "prior notice from the governmental entity to the subscriber or customer."

Delayed notice can be granted only when the government seeks a court order for disclosure pursuant to 2703(b)(1)(B)(ii), which is at issue.
6.19.2007 12:47pm
Bill Sommerfeld (www):
Warshak appears to be a modern-day snake-oil peddler using misleading advertising. IMHO, he's exactly the wrong sort of person you want involved in setting a privacy-protecting precedent. (shades of US v. Miller).
6.19.2007 1:00pm
eck:
Riptide and MassRep appear to misread the delayed notice option, which applies both to 2703(b)(1)(B)(i) [court order under 2703(d)] and (ii) [subpoena].

Note most obviously 2705(a)(1)(B), setting forth the process for delaying notice when a grand jury or administrative subpoena is used under 2703(b).
6.19.2007 1:05pm
Bill Sommerfeld (www):
with regard to option (2):

"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."

This doesn't clealy distinguish between the people at the ISP and automated systems at the ISP.

Given the spam epidemic, most ISP's find themselves forced by the deluge to enact spam defenses to reduce the cost of
offering email services. Most common spam-filtering techniques involve (automated) inspection and analysis of message contents with occasional administrative monitoring and correction. This analysis can be quite complex and may involve queries to third-party services; one fairly effective technique is to ask a "URL blocklist" as to whether a URL found in a message body has been seen frequently in other spam messages.

Is this a big loophole which destroys most ISP customer expectations of privacy?
6.19.2007 1:13pm
Justin (mail):
"Warshak appears to be a modern-day snake-oil peddler using misleading advertising. IMHO, he's exactly the wrong sort of person you want involved in setting a privacy-protecting precedent. (shades of US v. Miller)."

Bill, but that's the whole reason for the exclusionary rule in the first place. When the DOJ looks through YOUR email and finds nothing, there's generally no punitive remedy. In this instance, you probably never even find out that your emails have been rummaged through.

More dangerously, if you happen to be a lawyer......
6.19.2007 1:15pm
OrinKerr:
Justin,

Like the Sixth Circuit, I'm not interested in how different rules may or may not help (or have helped) in the criminal investigation of Warshak in particular. We don't know anything about what the e-mail evidence is, what kind of cause the government has to believe that particular evidence might be in particular accounts, or anything like that. Given that, it would be odd for the merits of the Sixth Circuit's decision to hnge on such questions; i don't plan to address them.
6.19.2007 1:16pm
George Weiss (mail):
Ok

you win..okay the 6th circuit seems to say a s ubpena would obviously require prior notice...

but the staute as cited by eck says thats nowt true...

and i relaize you said the district court didnt deal with the issue..not that the 6th cicruit dint deal with the issue in dicta...so ill take back my endorsement of that portion of what riptide says...good point


btw..this means the 6th circuit is clearly disagreeing (and are clearly wrong) on this issue of subpoena notice

makes me doubt the rest of their arguemtns..(OTOH sicne the injuction is agianst sopmthing else other than supenas...its kinda irrelevent)

lets see if you can conivnce me ther rest of it is bad
6.19.2007 1:20pm
Anderson (mail) (www):
Bill, many if not most crim-pro precedents are set by "the wrong sort of people" ...
6.19.2007 1:38pm
George Weiss (mail):
btw...the fact that an admin supona wouldnt give notice to the defendent as long as they had followed a delay of notice procedure in 2705...

that doesnt mena the 6th circuit wouldnt have the same problems wit hthat statue as they do with the 2703(d)

(and they porbly would hav e the same problems beacase the language of delayed notificatiion under 2705 for a subpoena and for a court order are virutally identical

and if there going to have a problem with a court order for it..there a fortiori going to have a problem with the delay of notice subpona provision
6.19.2007 1:53pm
Jim Harper (mail) (www):
I understand better now that you've clarified. This is not about the facts as we deal with them in case law, but a version of the facts (a "broader understanding") as you've culled them from the briefs. That's a departure from the usual discourse - it's your interpretation of the parties' allegations rather than the trial court's - and it means that your version of the facts won't map to the text that everyone else uses to discuss the case. Why is that helpful?

My impression is that you've concluded the guy is guilty ("hot on Warshak's tail" rather than "investigating Warshak" or "hounding Warshak"). That's fine, but, given that conclusion, your version of the facts won't be credibly neutral to others, as it wasn't to me.

LXJenkins spoke for me pretty well. Not having been convicted, Warshak is entitled to pursue privacy in his emails for any reason or no reason. The fact that he does so is not evidence of guilt.
6.19.2007 3:01pm
Dan Simon (mail) (www):
Bill, many if not most crim-pro precedents are set by "the wrong sort of people" ...

You mean judges?
6.19.2007 3:05pm
curious anonymous e-mailer:
A comment bleg -

Does anyone know if any ISPs, as part of their agreement with users, promise to notify you if they get asked for your e-mails?

And what if it is civil, not criminal? And what if someone in a civil suit just asks Yahoo for the name of the real owner of the "JohnDoe2000@yahoo" account? If I had such an account, I'd want Yahoo to notify me (at my real name) about the request/subpoena, and I'd at least have a chance to have a lawyer appear for me, keep me anonymous, and fight it off.

Otherwise, someone could use a figleaf suit as a way to get my identity, and thus chill or scare off corporate critics, political critics, etc.

Wish I had the time to research it, but does anyone know already?
6.19.2007 3:30pm
Justin (mail):
I'm incredibly curious now what you meant when you said, "it will create the rather surprising result that Fourth Amendment protections are actually significantly stronger online than in the physical world," but I will wait until you get there.
6.19.2007 4:22pm
CrazyTrain (mail):
The problem with Orin's analysis of just about every 4th Amendment &civil liberties questions I have seen him analyze on this blog (have not read much of his stuff outside of it) is that he is always willing to give the benefit of the doubt (and often a big doubt) to the government. This was very, very, very true on the wiretapping issues where he continually asserted that we just didn't have all the facts. This was even more true when he argued that the government should have the power to detain persons indefinitely on the say-so of the President. This was the most pronounced with the US Attorneys scandal where Orin's initial comments in retrospect look, frankly, embarassing, but he assured us that he knew some of the people and couldn't imagine that they acted for political reasons. I am still laughing at that one.

Also, the idea that Orin was not implying guilt with his "hot on the trail" remark is, stated simply, laughable. Orin, when will you learn that with this administration the benefit of the doubt is not justified any more and hasn't been for the last five years??????

The "Mr. Reasonable" role Orin plays here got old a long time ago; I don't know how people like Justin still buy into it. Orin only looks reasonable when compared to people liek Bernstein and Somin, neo-con extraordinaires. (I am sure Bernstein will take that as "anti-semitic" but ani yechol lehageed le David sha-ani yehudi ve ani adaayin lo ohev et neocons).
6.19.2007 9:37pm
OrinKerr:
Crazy Train, Jim,

Sorry that you object so much to my tone; I have scrubbed the post to remove any commentary about whether Warshak may be innocent or guilty. I try to maintain balance, but sometimes I miss it; and of course sometimes one person's recogniztion of reality is another person's horrible bias. In any event, I hope that you keep a similarly balanced tone in your commentary about my blogging.

Thanks,
Orin
6.20.2007 12:02am
OrinKerr:
One more question, Crazy Train: When you say "when will you learn that with this administration the benefit of the doubt is not justified any more and hasn't been for the last five years??????", how do you see that as relevant to this case? What role do you imagine "the administration" played in the briefing and arguments in the Warshak case? I'm curious.
6.20.2007 12:14am
CrazyTrain (mail):
Considering that the case was a challenge to the constitutionality of a federal statute, I would be shocked if the Justice Department was not involved in it, and lo and behold, I checked the briefing and it was. Given what we know about the politicization of the Justice Department -- including by career employees, apparently scared to stand up for their principles given the front office's politicization of all aspects of the Justice Dept* -- I am sure they had quite a bit to do with it; would you disagree? Especially now that DOJ is being run by a lackey for the administration, and that this administration has obliterated all checks that existed in previous administrations between too much mixing between the DOJ and the White House. Furthermore, given that this is a subject that this administration has been very interested in -- electronic surveillance -- do you actually, honestly think that the administration was not very, very involved in this??? If so, I admire your naievete but again, my core criticism of your writing and opinions on recent controversies is only heightened -- you are all too willing to give the government in general, and this government in particular, the benefit of the doubt.

* For examples of the shocking politicization of career workers in DOJ, see here,

Another topic that I would expect someone like you to be pretty outraged about.
6.20.2007 1:09am
Jim Harper (mail) (www):
Thanks, Orin. I hope I didn't come off overly hostile, but I was struck this morning when I read the facts as you recited them because of the editorial that you included. So many privacy cases, particularly in the illegal drug area, appear to be decided using the outcome-determinative formula "drugs were found; therefore the search was reasonable." Your version of the facts was shaping up in parallel to that: "A guilty guy went to assert privacy protections . . ." I hope your analysis is entirely neutral and would apply equally well in a case where, for example, you were being wrongly investigated by the FTC.
6.20.2007 2:42am
OrinKerr:
Jim,

Thanks for the comment. In my view, guilt or inocence has nothing to do whether the search is reasonable; the Fourth Amendment protects the guilty every bit as much as the innocent. I thought Warshak's likely guilt was relevant only to shed light on why he moved for injunctive relief; in my view, it's the odd request for injunctive relief that is the key to the merits of the case, so I thought it would be helpful to point out the likely explanation for why we're in this procedural posture to explain how we got here. It wasn't an important point, though; given that some readers thought it had some connection to the Fourth Amendment, I'm happy to take it out to avoid confusion.

Crazy Train,

You are hilariously uninformed. Thanks for the giggle.
6.20.2007 3:57am
Justin (mail):
CrazyTrain,

Although I have no doubts that (putting David Bernstein aside for now) Orin and Ilya are true conservatives, and not moderates (Orin being a process conservative and Ilya a liberterian-conservative), I find them *both* reasonable, intelligent, and intellectually honest. While you and I both hold with skepticism both the government in general and this Administration in particular, and certainly more so than Orin, I know plenty of very intelligent, reasonable, and admirable people who feel that it is not just alright but important to at least give initial deference to the government. Indeed, as my commentary about the Ninth Circuit's interpretation of Winsor shows, often that deference is necessary to serve a legitimate government function. That's not to say the government does not routinely abuse that deference - but still it is not a universal abuse, most government servants perform their duties admirably, and we cannot create an unworkable system simply for the purposes of moral clarity.

Thus, while I will continue to voice my disagreements with Orin (particularly on the Fourth Amendment, where my views are admittedly far further from the judicial and political mainstream than Orin's), I don't think its fair to say that he's a hack or that he's not reasonable.
6.20.2007 11:15am
Justin (mail):
Orin,

I hate to defend CrazyTrain when he's making his claim both insulting and offering it in a conspiracy-minded way, but from my experience as a lawyer and a clerk during this administration, federal government lawyers across all agencies have taken a viewpoint of executive power that coincides with the early-OLC viewpoint, and has led to some interesting arguments. Two examples outside the national security context that come to mind:

declaring that statutory language that says "X in his determination finds Y then Z" (when X is a political member of Article I) means that so long as X states that Y exists, the fact that it clearly doesn't is nonreviewable, and THEREFORE the statute simply puts Z in X's complete discretion regardless of Y.

declaring that an SEC order freezing "A's assets, wherever located," permits them, without any further judicial action, to freeze personal, unmingled assets of unindicted person B, if the SEC believes that B is a coconspirator of A

I've also seen the justice department, particularly on child predator cases, push dangerously acceptable behavior in terms of entrapment - relying on the unfortunate fact that "proponsity" is a jury question. And the DOJ's antitrust department has come under criticism for its use of prosecutorial "discretion" in a range of areas, most recently (but hardly most notably) in going after a liberal newspaper merger in South Carolina.

That being said, of course CrazyTrain is rediculous to think these positions are being taken due to "marching orders from up high." Instead, the difference is cultural - the leaders of DOJ offices, I think, are now a different kind of lawyer than in previous administrations - younger, more brash, and with a different mindset of the constitution. Some of that may be an indirect result of illegal political considerations in attorney hiring, but I don't think you have to be a conspiracy theorist to be concerned about the DOJ's view of executive power, particularly given the unequal power they have vis a vis most individuals (both in resources, and both de jure and de facto deference they receive in federal courts).

So I actually think CrazyTrain's latest set of allegations, though overbroad and not properly worded, contain at least a segment of truth. I don't know enough about this particular kind of action to know whether previous administrations have obtained email access under 18 USC 27xx in this manner or to this extent, but I wouldn't be surprised if the usage of 18 USC 27xx was pushed past what was considered appropriate prosecutorial discretion.
6.20.2007 11:37am
OrinKerr:
Justin,

I spent three years working on these issues as a career lawyer in the Clinton Administration in the office that is currently litigating the case for DOJ. Look at the DOJ Electronic Surveillance Manual from 2001 that was mostly written (by me, actually) in the late 1990s: the practice DOJ is defending has long been DOJ's interpretation, dating at least as far back as the mid-1990s.
6.20.2007 1:58pm
MassRepUnsure (mail):
I misread the statute due to the formatting in the opinion. In the opinion, the phrase about delayed notice is in the same paragraph as (ii) and I did not notice the semicolon. At the Cornell website, that phrase is separate from the (ii). The DOJ website has the same format as the opinion, but does the semicolon makes the formatting irrelevant?
6.20.2007 4:46pm
CrazyTrain (mail):
Orin -- Your naievete is cute. I worked for DOJ in ThIS administration. I can email you personally if you don't believe me. The DOJ you worked for is not what this DOJ is. You really are living in a time warp pretending as if nothing has nappened in the last 8 years --- DOJ is a joke now, and somewhere deep down you know it. But keep pretending little boy, keep pretending that these are "people you know" and those of us who actually worked in this administration can laugh at you, and your confidence in a world that no longer exists; you can pretend that the Clinton administration was corrupt and that Al Gonzales ain't so bad. Keep living in the academic bubble. Good for a giggle.
6.21.2007 4:26am
OrinKerr:
Crazy Train,

Call me instead; my office # is (202) 994-4775. I look forward to your call.

While I'm at it, I'm curious about something: when you write, "you can pretend that the Clinton administration was corrupt and that Al Gonzales ain't so bad. Keep living in the academic bubble.", what do you mean? I was and am a fan of AG Janet Reno, who I had the pleasure of working with at DOJ. I thought she had a lot of intergrity, and was unfairly maligned by her critics. And meanwhile, I have already called for the resignation of Alberto Gonzales. Given this, why do you think that I imagine the Clinton DOJ was "corrupt" while Gonzales "ain't so bad"? Perhaps you are confusing me with someone else? I know you wouldn't hurl broad accusations like that intentionally, so I hope we can get to the bottom of your misunderstanding.



Orin
6.21.2007 5:33am