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The notion of a reasonable “expectation of privacy” is a critical aspect of U.S. privacy law. 1 Two federal appellate courts recently released opinions shedding light on just what is, and what is not, within that “expectation” in the cyberspace milieu. The U.S. Court of Appeals for the Sixth Circuit ruled that such an expectation exists in the content of e-mail messages stored by an Internet service provider (ISP), and the Ninth Circuit held that there is no such expectation in the addresses of e-mail or of Internet communications, nor in the volume of such traffic. These cases merit attention as bellwethers of how the courts will apply established privacy law principles in the Information Age. In Warshak v. United States, 2 where the government alleged wire fraud and related offenses, the issue was whether there was an expectation of privacy in the content of e-mail communications stored by an ISP. The government obtained a court order pursuant to 18 U.S.C. �2703, 3 directing the ISP to turn over defendant’s account information and the content of e-mail messages that were in directories or files owned or controlled by defendant. Issued under seal, the order permitted a 90-day delay (as allowed by 18 U.S.C. �2705) for notice to defendant, and prohibited the ISP from disclosing the order’s existence (also permitted by �2705). The ISP complied with the order (which was made known to defendant one year later). Defendant sued to preclude similar searches, and obtained an order enjoining the government from seizing messages from or to him absent prior notice. The government appealed. The Sixth Circuit noted that �2703(b) provides three alternatives: a search warrant, an administrative subpoena, or a court order. Use of the subpoena or order requires (subject to �2705) notice to the subscriber, thereby permitting judicial review before production. The court pointed out that one primary reason for the difference in the showing necessary for a subpoena (general reasonableness) and for a search warrant (probable cause) is that the subpoena can be challenged in court prior to production. A party may challenge the subpoena on Fourth Amendment grounds if the party has a legitimate expectation of privacy. But a party who voluntarily discloses information to a third party maintains no such expectation as to information in the disclosee’s hands. In such a situation, the discloser “assumes the risk that his confidant will reveal that information to the authorities, and if that occurs the Fourth Amendment does not prohibit governmental use of that information.” 4 The court saw an analogy between the privacy interest in telephone call content and that in e-mail content. Several cases had held that interception of phone calls constituted a “search” because, even though transmitted over phone company equipment (and perhaps overheard or recorded by other equipment), the caller is entitled to assume that his words will not be broadcast. But U.S. Supreme Court precedent 5 teaches that whether a reasonable expectation of privacy exists in a communication depends on two factors: with whom was it shared, and from whom is it to be shielded. Disclosure to an intermediary that merely has the ability to access the information does not necessarily destroy the expectation (otherwise, no one speaking on the phone or mailing a letter would have an expectation of privacy). Because the phone company is expected to access and use the number dialed to complete the call, the number is not within the expectation. But the phone company is not expected to access the content (even though sometimes it does), and the content is therefore within the expectation. Analogizing, the court espoused that subscriber information belonged to the ISP as much as to the subscriber and likely was not within the expectation, whereas e-mail content corresponded to telephony content, and likely was within the expectation. 6 The court ruled that individuals maintain a reasonable expectation of privacy in e-mails that are stored with, or sent or received through, an ISP. 7 Mere accessibility does not destroy the expectation; only if records are accessed in the normal course of business is the expectation undermined. The terms of service here provided for access only in limited circumstances, and that did not destroy the expectation. Nor did the fact that ISPs regularly screen e-mail for viruses, spam and child pornography, because that is done through technology, and no person views the content in the process. 8 Moreover, the court found that other prohibitions in the Stored Communications Act buttressed the proposition that e-mail content is not generally accessed. 9 ‘Forrester’ In United States v. Forrester, 10 defendants were charged with offenses relating to the operation of an Ecstasy manufacturing facility. The government had obtained a court order to install a “pen register 11 analogue” 12 on defendant’s computer, and through this device had collected (i) addresses from which e-mail sent to defendant emanated, (ii) addresses to which he sent e-mail, (iii) “IP addresses of the websites that [defendant] visited,” 13 and (iv) total volume of information transmitted to and from his Internet account. The issue was whether the government thereby engaged in an unreasonable “search” in violation of the Fourth Amendment. The Ninth Circuit noted that no federal circuit had addressed the constitutionality of computer surveillance techniques that acquired the types of information at issue here. The court held there was no Fourth Amendment “search,” relying on Smith v. Maryland, 14 which held that use of a pen register did not constitute such a “search.” The Supreme Court there stated that people have no subjective expectation of privacy in telephone numbers they dial because they “realize that they must ‘convey’ phone numbers to the telephone company, since it is through telephone company switching equipment that their calls are completed.” 15 Any subjective expectation of privacy here would be unreasonable because “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.” 16 Importantly, Smith distinguished pen registers from more intrusive devices on the basis that pen registers did not acquire the content of the conversation. The court concluded that the device used here was constitutionally indistinguishable from the pen register for three reasons. First, like the phone user in Smith, e-mail and Internet users rely on third-party equipment to implement their communications. Analogously, e-mail and Internet users have no expectation of privacy in to/from e-mail addresses or IP addresses. 17 Secondly, the addresses here, as in Smith, revealed nothing about content. The Ninth Circuit also saw an analogy in a line of cases going back to the 19th century, in which the Supreme Court held that, although the government could not engage in warrantless search of the content of sealed mail, it was free to note the addresses (and anything else on the outside of the envelope). Thus, the Ninth Circuit concluded that while content was within the Fourth Amendment, address and size of the message were not. And finally, the court analogized the pen register’s recordation of the number of phone calls made, to the instant device’s monitoring of total volume of data transmitted to and from defendant’s account. Accordingly, the court held that the government surveillance techniques used here did not constitute a Fourth Amendment “search,” and that violation of the Fourth Amendment could therefore not be a basis for suppressing the evidence. In an important “aside,” the Ninth Circuit did, however, opine that surveillance that disclosed the uniform resource locator (URL) of a Web page visited “might be more constitutionally problematic.” 18 Accordingly, in the Information Age the determination of whether a reasonable expectation exists is to be made using the same long-established criteria that courts have developed for pre-existing technology. This determination thus depends on how people would reasonably view the situation, and must take into account the posture of the person from whom disclosure is sought. David Bender is senior privacy counsel at DLA Piper. Endnotes: 1. See, e.g., United States v. Miller, 425 U.S. 435 (1976); Katz v. United States, 389 U.S. 347 (1967). 2. F.3d – (No. 06-4092 Sixth Circuit 18 June 2007). 3. Part of the Stored Communication Act, �2703(d) provides that a court may issue such an order if the government “offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.” 4. United States v. Jacobsen, 466 U.S. 109, 117 (1984). 5. Miller, supra; Katz, supra. 6. ” . . . simply because the phone company or the ISP could access the content of e-mails and phone calls, the privacy expectation in the content of either is not diminished, because there is a societal expectation that the ISP or the phone company will not do so as a matter of course.” Slip opin. at 11. However, if the government had subpoenaed the recipient of an e-mail message seeking its content, the sender would have no Fourth Amendment argument because the disclosee would be expected to access the content. Id. 7. “It goes without saying that like the telephone earlier in our history, e-mail is an ever-increasing mode of private communication, and protecting shared communications through this medium is as important to Fourth Amendment principles today as protecting telephone conversation has been in the past.” Slip opin. at 12-13. 8. The court analogized this to the post office’s screening for explosives or drugs, neither of which exposes the content of any enclosed documents. 9. Section 2701 prohibits unauthorized users from accessing e-mail, and �2702 generally prohibits an ISP from making unauthorized disclosures of content. 10. F.3d, 2007 WL 1952390 (9th Cir. 3 July 2007). 11. A pen register is a device, installed on a telephone line in a telephone company central office, that supplies the numbers called by users of that line, but does not disclose call content. 12. An application for a pen register order must contain “a certification by the applicant that the information likely to be obtained is relevant to an ongoing criminal investigation being conducted by [the applicant's] agency.” 18 U.S.C. �3122(b)(2). The court must issue such an order if it finds that the government attorney has certified “that the information likely to be obtained by such installation and use is relevant to an ongoing criminal investigation.” 18 U.S.C. �3123(a). This standard falls short of the “probable cause” necessary for a search warrant. 13. Slip opin. p. 8075. 14. 442 U.S. 735 (1979). 15. 422 U.S. at 745-46. 16. Id. at 743 – 44. 17. “Communication by both Internet and telephone require people to ‘voluntarily turn [] over [information] to third parties.’” Slip opin. at 8084, quoting from 442 U.S. 744 (bracketed material by the Ninth Circuit). 18. Slip opin. at 8084.

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