In United States v. Warshak, the Sixth Circuit Court of Appeals held that the government's use of a subpoena to compel production of relevant emails from an Internet Service Provider ("ISP") in accordance with the Stored Communications Act (the "Act") is unconstitutional under the Fourth Amendment for failure to obtain a search warrant and to the extent the Act authorized warrantless seizure of emails, the Act itself is unconstitutional.  2010 WL 5071766 (6^th Cir. 2010).

The United States brought criminal charges against Berkeley Premium Nutraceuticals, Inc. ("Berkeley"), the manufacturer of a popular male enhancement supplement named "Enzyte" and its owner, Steven Warshak ("Warshak"), for mail fraud, bank fraud, wire fraud, misbranding, conspiracy, etc.  Warshak's criminal conduct included enrolling unwilling customers in auto-delivery programs with complicated refund schemes, making unauthorized charges to credit cards on file to improve credit ratings with merchant banks, developing fake research and doctors to sell Enzyte, falsifying customer satisfaction numbers and informing employees to skip necessary disclosures.  Warshak was sentenced to twenty-five years in prison and ordered to pay approximately $500,000,000.00 (not a typo) in forfeiture of proceeds.

Warshak appealed the judgment on the grounds that personal emails obtained by the government directly from an ISP under the Act, by first directing them to preserve Warshak's emails and later issuing a subpoena to collect the preserved emails, violated the Fourth Amendment as the government failed to secure a warrant.  In response, the government argued that the Act authorized such a procedure to obtain emails from a "remote computing service," which is defined as a service which provides "computer storage or processing services."  By contrast, the Act requires a warrant to obtain emails from an "electronic communication service," defined as a service which permits users "to send or receive wire or electronic communications."  Noting that an ISP is no different from a telephone operator or mail carrier, the Court denied the governments contention that passing communications through an ISP and subscriber agreements which afford the ISP access to email defeats privacy expectations, noting that "control over the emails and ability to access them under certain limited circumstances will not be enough to overcome an expectation of privacy."  Accordingly, the Court held that a subscriber has an expectation of privacy in emails stored with, sent through or received through commercial ISP providers, the government may not compel an ISP to turn over emails absent a warrant and to the extent the Act authorizes such a warrantless seizure, the Act is unconstitutional. 

Although the Court found a violation of Warshak's Fourth Amendment rights, the Court did not apply the exclusionary rule as the government acted in good faith reliance on the Act.  The Court noted that going forward, "a reasonable officer may no longer assume that the Constitution permits warrantless searches of private emails."

For a copy of the opinion, click here.