Court Refuses To Rule On ECPA Warrantless E-mail Searches

utkalum writes "After Steven Warshak's indictment and conviction on charges of mail and wire fraud, money laundering and other federal charges, he learned that key evidence in the case was obtained by the government under a 1986 law permitting no-warrant searches of email communications stored for longer than 180 days. He also learned that, despite the Electronic Communication Privacy Act's requirement that such searches be disclosed to the suspect no more than 90 days after they were commenced, the Government simply couldn't be bothered to comply. Now, the US Court of Appeals for the Sixth Circuit has refused (9-5) to hear Warshak's constitutional challenge to the Act (PDF), claiming that the question raised is 'not yet ripe' for adjudication. It's worth noting that the court also vacated an earlier injunction against using that act to read the e-mail of other people in Warshak's district. Read on for an excerpt from the ruling. 'Not only do "we have no idea whether or when" such a search will occur but we also "have no idea" what e-mail accounts, or what types of e-mail accounts, the government might investigate ... That uncertainty looms large in a debate about the expectations of privacy in e-mail accounts. The underlying merits issue in the case is this: In permitting the government to search e-mails based on "reasonable grounds," is 2703(d) consistent with the Fourth Amendment, which generally requires "probable cause" and a warrant in the context of searches of individuals, homes and, perhaps most analogously, posted mail? The answer to that question will turn in part on the expectations of privacy that computer users have in their e-mails — an inquiry that may well shift over time, that assuredly shifts from internet-service agreement to internet-service agreement and that requires considerable knowledge about everevolving technologies.'

Comments

'ripeness' is valid

[Red Flayer]

Now, the US Court of Appeals for the Sixth Circuit has refused (9-5) to hear Warshak's constitutional challenge to the Act (PDF), claiming that the question raised is 'not yet ripe' for adjudication.

Anyone who is going to tartly respond to this inflammatory statement would do well to read the link contained in the statement... 'ripeness' is an important legal concept, and it is clear that the matter is, as yet, unripe.

In order for the 'ripeness' qualification to be met, decision on the claim must affect the outcome. It's clear from reading the link that the outcome would not be affected, since the government is unlikely to perform another ex parte search; and even if they did, it wouldn't matter, since the guy who was indicted knows full well that he is under indictment, and would be even more of a fool to leave any more emails hanging around for the government to search.

As for the other issues, I'll not comment, since I don't think my words would bear the fruit.

Re:'ripeness' is valid

[corsec67]

This guy can't sue to prevent this from happening to other people?

Could someone who hasn't been caught by this snooping sue?

So, people who have been affect can't sue because it wouldn't happen again, and people who haven't been affected can't sue either?

Or is my thinking just wrong? (IANAL, so that is easy)

Re:'ripeness' is valid

[cpu_fusion]

I think you just described "mootness", not "ripeness."

Ripeness is a prudential rule (i.e. court-created) that the court uses to basically say that not enough is understood about the pros and cons of a particular ruling for stare decisis at the appellate level.

Sometimes the court invokes Ripeness when the counsel (or facts) are judged to be not adequate for a good decision. e.g. defense counsel sucks, or the facts suck, or whatever.

I'm not saying either is the case here; it's just a dodge for the court.

I think the prudential standing rules should be unconstitutional, but given that deciding constitutionality is the courts domain, I don't see them giving this power up.

Re:'ripeness' is valid

[Free_Meson]

A lot of folks here are going to complain about this decision without really understanding the case. It seems to me that this guy's lawyer made some poor decisions if he was pinning his hopes on this decision.

It appears that Warshak asked for two things:
-an injunction against future searches under 2703(d) without notice
-a ruling on the constitutionality of 2703(d) on the grounds that it allows the violation of a citizen's reasonable expectation of privacy without a warrant

On the first matter, the court's ripeness argument strikes the nail on the head. Warshak knows that he is under investigation now (indeed, he is convicted) so there's no need for judicially-delayed notification.

On the second matter, the court points out that a citizen's reasonable expectation of privacy (REP) when using an electronic mail/data storage service will vary with the terms of service agreed upon between the citizen and the service provider. Thus, whether a citizen has a REP should be decided on a case by case basis.

Warshak should be arguing that he had a REP and that the statute as applied to him was a violation of his 4th amendment rights. I don't think that's a winner, as 2703(d) appears to require probable cause or something like it.

Probable cause:

Probable cause is what would lead a person of reasonable caution and prudence to believe that a person, evidence, or contraband related to a crime is in a specific place at a specific time.

2703(d):

"a court of competent jurisdiction" may issue an order based on "specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation."

2703(d) is slightly more broad than probable cause, as there is no need for the records or other information sought to be useful as evidence of a crime. They need merely be relevant and material. For example, a contact list from Warshak's email service provider may give investigators an idea of who to contact to discover more victims of his wire fraud scheme without itself being evidence of said scheme. In this case, though, I suspect that investigators would have had sufficient probable cause had they sought a warrant. As with a warrant, investigators had to prove to an impartial magistrate their reasonable belief that Warshak's service provider had evidence relevant to a specific criminal investigation. The principle advantage gained by using 2703(d) in this case appears to be the delayed notice provision.

Re:'ripeness' is valid

[Londovir]

In the same spirit of respect, I have to disagree with what you posted.

If you read the entire opinion, the following was mentioned:

- The government sought permission twice from a magistrate judge to gain access to the guy's email records. (So it's not a warrant, but it WAS an official court order)
- The government had to demonstrate to the magistrate that the records they sought contained information "relevant and material to an ongoing criminal investigation" (So it wasn't a blind or frivolous fishing expedition)
- The government was ordered by the magistrate to delay giving notice since the judge felt there was a credible chance of the guy tampering with evidence
- The judge sealed the court orders related to the searches

My point is, unlike other abuses of government warrantless work, at least this one had some measure of judicial review involved. That makes this case different, IMHO, than other warrantless wiretapping and such, and care should be taken to not draw conclusions about either with a broad stroke here.

The court also felt that not only was the case "not ripe" for ruling (which has a very clear and painstakingly discussed meaning in the opinion), but that the guy partially argued on the wrong grounds. They almost suggest he MIGHT have had a shot of having his case heard if he'd argued 1st Amendment rather than 4th Amendment (since he alluded to the idea of a "chilling effect" when it comes to emails) - but he didn't, he argued 4th Amendment.

In fact, from reading the opinion, it seems as though this guy completely "screwed up" his entire arguments. It sounds as though he sued on the grounds of future, potential searches, rather than on particular admissability of the emails that were gained during the prior 2 searches. It definitely was an issue that the guy sought to overturn ALL of 2703(d), for everyone, rather than just his particular case. The court makes great pains to state how they refuse to make a potential constitutional ruling for a general class situation where each person's particulars may be widely different.

I'd say the court did a reasonable thing with this decision, all things considered. The guy clearly should have known from his Yahoo TOS that his emails weren't going to be fully private in the first case - and in fact it was pointed out in his own TOS that "emails will be provided to the government upon request." (That argues, possibly, that the government may have been able to get the emails from Yahoo without any court involvement at all - depending on how Yahoo wants to proceed)

All in all, seems like nothing more to see here to me. Let's focus on FISA, where the real problems are, not on this non-case.

Re:Contact the court here:

[mitch.swampman]

Disregard my mangled post :(
Should read:
Court of Appeals
540 Potter Stewart U.S. Courthouse
100 East Fifth Street
Cincinnati, Ohio 45202
Phone: 513-564-7000