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E-Mails & Privacy under the U.S. Patriot Act

By Martha L. Arias

The Electronic Communications Privacy Act of 1986 (ECPA), Pub. L. No. 99-508, § 201, 100 Stat. 1848, codified as amended at 18 U.S.C.S. §§ 2701-2711, regulates the access, use, disclosure, interception and privacy protection of electronic communications. ECPA defines electronic communications as "any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photo electronic or photo optical system that affects interstate or foreign commerce." Thus, according to this definition, e-mails are electronic communications under ECPA. ECPA was introduced by the precepts of the U.S. Patriot Act and as many other concepts introduced by the Patriot Act, it contains questionable surveillance measures. This article, for instance, presents a case involving the U.S. government surveillance of e-mails, as authorized by ECPA, and the court's decision on the plaintiff's violation of privacy claim.

Compelled-disclosure of electronic communications under ECPA provides different levels of privacy protection depending on how long an e-mail is held in electronic storage with an electronic communication service or remote computing service. 18 U.S.C.S § 2703(a) authorizes the federal government to order the disclosure of e-mails that are in electronic storage with an electronic communication service for 180 days or less only pursuant to a warrant order. Hence, 18 U.S.C.S. § 2703(d) authorizes the federal government to request internet service providers (ISPs) to disclose the content of their customers' electronic communications in certain cases.  Requests under this ECPA section may be processed by way of ex parte court order. As a result, U.S. groups that defend privacy rights have criticized this particular ECPA section despite the requirement that these requests are limited to certain cases. E-mails in electronic storage for over 180 days may be ordered disclosed by (1) a warrant order; (2) an administrative subpoena; or (3) an ex parte court order under §2703(d).  

Compelled-disclosure of electronic communications, therefore, requires knowing the exact definition of the following three terms: "Electronic communication services" are those that allow users to send or receive wire or electronic communications. 18 U.S.C.S. § 2510(15). This definition, therefore, covers basic e-mail services. "Electronic storage" is a temporary storage of a wire or electronic communication for purposes of backup. 18 U.S.C.S. § 2510(17). "Remote computing services" are those that provide long-term computer storage or processing services to customers. 18 U.S.C.S. § 2711(2).

IN Warshak v. United States, 532 F.3d 521 (Ct. App. 6th Cir. 2008), the U.S. was conducting an investigation of Warshak's company to determine if he had committed bank and mail fraud and money laundering, and obtained an ex parte court order compelling an ISP to disclose the content of Warshak's e-mails. Warshak only knew about this ex parte order one year later after the federal government had spied on his e-mails. Warshak filed a declaratory judgment action seeking to invalidate § 2703(d) under the Fourth Amendment to the United States Constitution. Warshak also sought a preliminary injunction seeking to enjoin the federal government from using § 2703(d) to review the content of any personal e-mail account belonging to Warshak or any resident of the Southern District of Ohio. The district court enjoined the government from using §2703(d) to seize the content of Warshak's e-mails without providing him with an opportunity to be heard.  The government appealed.

The court of appeals vacated the district court's preliminary injunction, and remanded the case with instructions to dismiss the constitutional claim.  The court of appeals held that the case was not ripe for review. The court held that "[L]ike standing, ripeness is drawn both from Article III limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction. The ripeness doctrine serves to avoid premature adjudication of legal questions and to prevent courts from entangling themselves in abstract debates that may turn out differently in different settings. In ascertaining whether a claim is ripe for judicial resolution, the United States Court of Appeals for the Sixth Circuit asks two basic questions: (1) Is the claim fit for judicial decision in the sense that it arises in a concrete factual context and concerns a dispute that is likely to come to pass; and (2) what is the hardship to the parties of withholding court consideration?"

The court in Warshak abstained from getting into muddy waters, and we may expect any court of appeals will follow this posture.  No U.S. judge may want to hold that the Patriot Act and §2703(d) violate the United States Constitution.  This is definitely a matter left to Congress and too political and sensitive for any court.  Meanwhile, we can easily say that there is not expectation of privacy on any e-mail content when it comes to a federal crime investigation.

Full post as published by IBLS Internet Law Blog on January 20, 2010 (boomark / email).