Case Law: United States v. Warshak

Friday, January 14, 2011 by Thought Leadership Team

Court Upholds Government’s Search and Seizure Despite Acknowledging Right to Privacy in E-Mail Communications

United States v. Warshak, 2010 WL 5071766 (C.A.6 (Ohio) Dec. 14, 2010). In this criminal case, the defendants appealed their numerous convictions for fraud claiming the government violated the Fourth Amendment prohibition against unreasonable search and seizures by obtaining private e-mails without a warrant. The defendants also argued that the government turned over immense quantities of discovery in a disorganized and unsearchable format, that the government violated its Brady obligations by producing “gargantuan ‘haystacks’ of discovery” and that the district court erroneously denied a 90-day continuance to allow the defendants to finish sifting through the “mountains of discovery.” Addressing the Fourth Amendment concerns, the court first found the defendant plainly manifested an expectation that his e-mails would remain private given the sensitive and “sometimes damning substance” of the e-mails, viewing it as highly unlikely the defendant expected the e-mails to be made public as people “seldom unfurl their dirty laundry in plain view.”  Next, the court determined that it would defy common sense to treat e-mails differently than more traditional forms of communication and found that neither the possibility nor the right of access by the Internet Service Provider (ISP) is decisive to the issue of privacy expectations. Based on these conclusions, the court held the government may not compel an ISP to turn over e-mails without obtaining a warrant first. However, the court ultimately found the government relied in good faith on the Stored Communications Act in obtaining the e-mails and determined the exclusionary rule does not apply. Turning to the “prodigious” volume of discovery that consisted of millions of pages, the court disagreed with the defendants’ arguments, noting in particular that Fed.R.Crim.P. 16 is silent on what form discovery must take.


This lengthy opinion contains several critical holdings and is certainly worth a thorough read. In particular, it is interesting that this decision holds the SCA to be unconstitutional to the extent it permits disclosure of e-mails without the use of a search warrant. In addition, although the court held the officers relied on the SCA in good faith, moving forward, law enforcement officials can no longer rely on those provisions in good faith moving forward as the SCA was deemed unconstitutional with respect to the warrant requirement. This serves as a significant caution and warning to law enforcement officers in the Sixth Circuit and elsewhere (despite the fact that the holding is only mandatory with respect to officers in the Sixth Circuit seeking to compel disclosure under the SCA)