Court Recognizes Privacy Rights for Email Subscribers; Addresses the Role of Internet Service Providers

Just in time for the holiday season, a federal appeals court has presented Internet Service Providers (ISPs) with a “worry issue” that’s as welcome as a re-gifted fruitcake.  How should ISPs respond to law enforcement requests for copies of their subscribers’ email when the government doesn’t provide a search warrant?  While the issue isn’t new, thanks to the court’s recent decision, the ISP’s concerns have become more complicated.

In U.S. v. Warshak, a panel of the U.S. Court of Appeals for the 6th Circuit found that an ISP subscriber had a reasonable expectation of privacy in his emails and thus was entitled to the Fourth Amendment’s protections against unreasonable searches and seizures by the government.  The case involved a complex federal criminal prosecution involving the principals of a company that distributed “an herbal supplement purported to enhance male sexual performance.”  The Appeals Court found that the government violated the defendant’s constitutional rights by compelling the ISP to turn over the defendant’s emails without first obtaining a search warrant supported by probable cause. 

The defendant sought to have the trial court exclude thousands of emails obtained by the government.  Warshak held that the defendant enjoyed a reasonable expectation of privacy in the emails due to his subjective expectations (because the emails contained sensitive material) and because the ISP served as an intermediary for the defendant’s messages, not as an intended recipient.  Prosecutors argued that government agents acted in reliance on a federal statute (the Stored Communications Act [“SCA”]) that permits disclosure of the contents of electronic communications in certain circumstances.  The Appeals Court found the SCA to be partially unconstitutional but declined to exclude the emails, finding that the government agents acted in good faith reliance on the SCA.

The case has several important takeaways for ISPs.  First, ISPs may need to take a fresh look at their potential liability to their subscribers if they provide the subscriber’s emails to the government.  Even if the ISP controls the emails and the service agreement provides it with limited rights of access, a court may find that a subscriber likely has a “reasonable expectation of privacy” and therefore Fourth Amendment protections.

Such an expectation does not exist in all cases – the Appeals Court noted that an ISP’s expressed intention to “audit, inspect, and monitor” emails may render the expectation of privacy unreasonable.  Accordingly, ISPs may wish to review their service agreements to determine what they are telling subscribers about the ISP’s inspection of emails, about how the ISP will respond to legal processes designed to access subscriber emails and what notices, if any, will be given to subscribers in these instances. 

Second, the ruling also impacts business issues.  Consumers demand private, secure communications and more generally, privacy concerns permeate many aspects of Internet services.  An enhanced expectation of privacy by consumers may translate into additional costs for service providers. 

Third, many federal and state laws address privacy in electronic communications, so the contours of this privacy right are a work in progress, particularly in light of technological changes.  For example, the SCA was enacted in 1986 -- years before email was widely used and available.  As a result, don’t expect the Warshak decision to be the last word.  While the ruling applies directly in states within the 6th Circuit (i.e., Kentucky, Michigan, Ohio and Tennessee), it can be deemed persuasive authority elsewhere, but other jurisdictions also may reach different conclusions.  The U.S. Supreme Court also may be expected to weigh in at some point given the importance of the issue.