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 (