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Court cheers warrantless snooping of e-mail

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Your e-mail is at risk again thanks to a recent ruling that backs no-notice, warrantless digs through e-mail accounts held by service providers.

A US appeals court issued a ruling (PDF) on Friday that overturned a previous decision by one of its panels preventing government searches of private email accounts without prior notice to the account holder. This ruling removed an injunction keeping the government from conducting any such searches in the court's jurisdiction, and, for the time being, put the brakes on a constitutional challenge to email searches under the Stored Communications Act where the subject did not have an opportunity to obtain judicial review prior to the search.

The one bright spot for those interested in preventing email searches without prior notice is that the court decided the matter on procedural grounds, which leaves the substantive issues open for a more favorable decision down the road.

Just the Facts

The case first arose after Steven Warshak, the president and sole owner of Berkeley Premium Nutraceuticals, Inc., received belated notice that the US government had accessed the content of his emails stored with NuVox Communications and Yahoo! that were more than 181 days old. The government had obtained court orders for the searches as part of an investigation into fraud and money laundering by the company.

(Warshak was eventually convicted on 93 counts of bank fraud, mail fraud, money laundering and other federal crimes.)

The Stored Communications Act authorizes ISPs to release the contents of emails when instructed to do so by a court order. The Act also allows a court to delay the delivery of notification to the email account owner when the court determines that the notice could jeopardize the government's investigation.

The court issuing the order in this case determined that notice to Warshak would put the investigation at risk, so it directed the government to delay notice to Warshak by 90 days. The court also sealed the orders, however, so the government waited until the court unsealed the orders to actually give Warshak notice of the release. Warshak finally received the word that the government had searched his emails roughly one year after the first order came down.

Warshak then filed suit in federal district court seeking a declaration that the compelled disclosure of his emails violated the Fourth Amendment and the SCA, and a preliminary injunction preventing any future seizures of his emails.

The district court agreed with Warshak and found that orders issued under the SCA ex parte - meaning that an account owner did not have a chance to challenge the order in court – most likely violated the constitution since email account owners have a reasonable expectation of privacy in the contents of their messages. Having found that this section of the SCA probably violated the constitution, the court then enjoined the government from seeking any further ex parte orders within the court's jurisdiction.

The government appealed the district court's decision, but a three-judge panel of the Sixth Circuit agreed with the district court and upheld the issuance of the preliminary injunction.

Third Time's the Charm

The government then appealed again to the entire Sixth Circuit. This time, the court sided with the government and determined that the injunction issue was not ripe for adjudication since the government wasn't likely to seek another ex parte order for Warshak's emails. Despite the fact that the government had already sought two such orders in the past, the court found that any future orders would not be ex parte since Warshak's indictment and conviction had rendered any reason for concealing the orders moot.

Moreover, the court determined that the district court and the panel had exceeded their reach by issuing an injunction that applied to all possible searches, rather than just searches of Warshak's emails. Warshak hadn't sued on behalf of anyone other than himself, the court argued, and the ever-changing world of electronic communications made it difficult to state definitively that all future applications of the disputed section of the SCA would be unconstitutional.

Finally, the court held that Warshak could explore other channels in order to obtain a remedy – either by arguing to suppress the evidence from the emails in a criminal appeal, or through a civil lawsuit against the actual officers involved in the search – and so the lack of a preliminary injunction would not cause him undue hardship.

In the end, the court removed the injunction and sent the case back to the district court so it could dismiss the constitutional claims against the delayed-notice provisions of the SCA. By doing so, the court sent a message that a constitutional claim might be possible in the future, but the present case pursued it in a way that wasn't ready for judicial consideration.

Not every member of the court agreed, however, and in a blistering dissent, Judge Boyce Martin and four other judges called the ruling "another step in the ongoing degradation of civil rights in the courts of this country."

At least this issue had its day in court, though. The people suing the telecoms over warrantless wiretaps won't even get that much after the government gave in to Bush Co. ®

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