Government’s Right to Read Your E-Mail-6th Circuit Court of Appeals

The Stored Communications Act of 1986 is being challenged in federal court by Steven Warshak, a seller of “natural male enhancement” products who was indicted on 107 counts of conspiracy, money laundering, mail fraud, wire fraud and bank fraud.^[1] Warshak claims that the search of his email violated his Fourth Amendment right against unreasonable searches and seizures.^[2]

In July, U.S. District Judge Dlott issued a temporary order enjoining the United States from seizing the contents of any personal email account by an Internet Service Provider (ISP) in the name of any resident of the Southern District of Ohio without providing notice. ^[3] The United States and Warshak agree that the standard of proof outlined in the Act “falls short of probable cause.” ^[4] The government appealed the decision to the 6th Circuit Court of Appeals.

Congress passed the Stored Communications Act twenty years ago, giving state and federal officials broad access to messages stored on the computers of email providers.^[5] Scholars argue that the Act is confusing and needs to be updated to keep up with current email technology.^[6]

Warshak asserts that by relying on this lesser standard to seize his emails, the U.S. violated the 4th Amendment presumption that “closed packages and containers may not be searched without a warrant” issued upon showing of probable cause.^[7] Warshak “analogizes emails to the contents of letters and sealed packages.”^[8] The government argues that a personal email held by an ISP more closely resembles a postcard because “its contents are plainly visible to the ISP, who can access it at any time.” ^[9]

The issue the 6th Circuit will address is whether an individual surrenders his reasonable expectation of privacy in personal email once he allows those emails to be stored on an ISP. The Supreme Court has held that “when an individual reveals information to another, he assumes the risk that the confidant will reveal that information to the authorities, and if that occurs the Fourth Amendment does not prohibit governmental use of that information.”^[10] Warshak argues that “in the case of email, the subscriber perhaps maintains more control over the email letter than in any other traditional third party carrier context… [because] without any notice or permission from the ISP, a subscriber can retake the email, delete the email from his mailbox, or do what she wants to do with the email…”^[11]

Former president of Warshak’s company Berkeley Nutraceuticals, Greg Cossman, his wife and former division manager, Susan Cossman, former vice president of operations, James Teegarden and former controller Michael Wagner all pleaded guilty in January to a conspiracy scheme which "defrauded consumers of over $100,000,000." ^[12] The scheme involved advertisements making false medical claims, false doctor endorsements and false money back promises.^[13] The sales staff made material misrepresentations about product effectiveness, satisfaction rates and money back guarantees.^[14] The "auto bill" program charged customers' credit cards without their knowledge or consent.^[15] The “auto bill” program was the biggest reason people complained about Berkeley to the Better Business Bureau alerting the U.S. Postal Inspection Services to investigate the company.^[16]

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[1] John Reinan, Lawsuit Challenges Government’s Right to Read Your E-Mail, Star Tribune, December 18, 2006
[2] Id.
[3] Warshak v. United States, No. 1:06-CV-357 (S.D.Ohio, July 07, 2006)
[4] Id.
[5] Star Tribune, supra note 1
[6] Kerr, Orin S., "A User's Guide to the Stored Communications Act, and a Legislator's Guide to Amending It.” George Washington Law Review, 2004, Available at http://ssrn.com/abstract=421860
[7] Warshak at 8
[8] Id.
[9] Id.
[10] United States v. Jacobsen, 466 U.S. 109, 114 (1982)
[11] Warshak at 10
[12] Tom McKee and Jay Warren, Pleas in $100 Million Mail Fraud Case, January 25, 2006, WCPO.com/news
[13] Id.
[14] Id.
[15] Id.
[16] Id.