Does the Fourth Amendment Apply to Emails?
As the court noted, the provisions of the Stored Communications Act:
... give different levels of privacy protection based on whether the e-mail is held with an electronic communication service or a remote computing service and based on how long the e-mail has been in electronic storage. The government may obtain the contents of e-mails that are “in electronic storage” with an electronic communication service for 180 days or less “only pursuant to a warrant.” 18 U.S.C. § 2703(a). The government has three options for obtaining communications stored with a remote computing service and communications that have been in electronic storage with an electronic service provider for more than 180 days: (1) obtain a warrant; (2) use an administrative subpoena; or (3) obtain a court order under § 2703(d). (Emphasis added)
Evidently, the court concluded that all such stored communications, and not merely those stored for one hundred and eighty days or less, require a warrant. This interpretation is consistent with the broad statement of its holding provided by the court and quoted at the beginning of this article. It is also supported by Judge Keith's concurring opinion:
As the majority notes ... the government requested a secret subpoena to confiscate Warshak’s personal emails without his knowledge pursuant to §§ 2703(b) and (d) of the Stored Communications Act (“SCA”). ... The officers ... requested the emails from NuVox via a § 2703(b) subpoena and a § 2703(d) order. ... [W]e today declare these statutes unconstitutional insofar as they permit the government to obtain such emails without a warrant.
Despite the unconstitutionality of sections 2703(b) and (d), the court refused to exclude the unconstitutionally obtained evidence pursuant to the exclusionary rule. It noted that although the exclusionary rule is intended to prevent constitutional violations, its application is not itself constitutionally required in some circumstances. Finding that the government had proceeded in good faith, it declined to exclude the e-mail evidence. To make its determination that the government had proceeded in good faith and that exclusion of the e-mails was therefore inappropriate, the Sixth Circuit relied on a Supreme Court's decision in Illinois v. Krull, 480 U.S. 340 (1987) that:
The exclusionary rule’s purpose of deterring law enforcement officers from engaging in unconstitutional conduct would not be furthered by holding officers accountable for mistakes of the legislature. Thus, even if a statute is later found to be unconstitutional, an officer “cannot be expected to question the judgment of the legislature.” (Internal citations omitted)
In finding good faith reliance the court noted among other things that:
Given the complicated thicket of issues that we were required to navigate when passing on the constitutionality of the SCA, it was not plain or obvious that the SCA was unconstitutional, and it was therefore reasonable for the government to rely upon the SCA in seeking to obtain the contents of Warshak’s emails.
The thicket was certainly dense, but in view of the court's ruling on constitutionality no substantial exclusionary rule "good faith" problems with sections 2703(b) and (d) similar to those in Warshak should arise in the future, at least in the Sixth Circuit (including the states of Kentucky, Michigan, Ohio and Tennessee).
The Sixth Circuit's invalidation of sections 2703(b) and (d) of the Stored Communications Act seem quite likely to be considered eventually by the Supreme Court.