Filling the Void in Internet Privacy: Time to Turn to the Courts (Again)

Now that the U.S. government has overturned the FCC’s privacy regulations, are courts more likely to step in to protect the Internet privacy rights of individuals?

More specifically, how will courts respond when an Internet Service Provider (ISP) divulges to law enforcement the content and details of a subscriber’s Internet activity without obtaining a search warrant, despite law enforcement having complied with the judicial process set forth in the Electronic Communications Privacy Act (ECPA), in particular, the Stored Communications Act (SCA). Will courts require a search warrant even though the SCA does not require one?

If the past is any indication, I anticipate that an increasing number of federal and state courts, when faced with this question, will find that individuals have a “reasonable expectation of privacy” in the content and details of their Internet activity and that they will prohibit the government from obtaining warrantless access to such information under applicable constitutional law. The constitutional law could be the Fourth Amendment to the U.S. Constitution or a state’s constitution or declaration of rights.

Supporting this view are a number of bellwether court cases, such as United States v. Warshak, 631 F.3d 266 (6th Cir. 2010); Commonwealth v. Augustine, 467 Mass. 230 (2014); and In re United States of America for an Order Authorizing the Release of Historical Cell-Site Data, 809 F. Supp.2d 113 (E.D. New York 2011).

In Warshak, the Sixth Circuit held that an ISP subscriber enjoys a reasonable expectation of privacy in the contents of e-mails that are stored with, or sent or received through, a commercial ISP and that the government may not compel a commercial ISP to turn over the contents of a subscriber’s e-mails without first obtaining a warrant based on probable cause. The court stated: “Therefore, because they did not obtain a warrant, the government agents violated the Fourth Amendment when they obtained the contents of Warshak’s emails. Moreover, to the extent that the SCA purports to permit the government to obtain such emails warrantlessly, the SCA is unconstitutional.” United States v. Warshak, 631 F.3d at 288.

In Augustine, the Supreme Judicial Court of Massachusetts addressed the question whether, consistent with the Massachusetts Constitution, the Commonwealth may obtain from a cellular telephone service provider historical cell site location information (CSLI) for a particular cellular telephone without first obtaining a search warrant supported by probable cause. The court concluded that, “although the CSLI at issue here is a business record of the defendant’s cellular service provider, he had a reasonable expectation of privacy in it, and in the circumstances of this case—where the CSLI obtained covered a two-week period—the warrant requirement of art.14 [of the Massachusetts Declaration of Rights] applies.” Commonwealth v. Augustine, 467 Mass. at 232.

Lastly, in In re United States of America for an Order Authorizing the Release of Historical Cell-Site Data, the court held that a search warrant is required to obtain historical CSLI records, stating “[w]hile the government’s monitoring of our thoughts may be the archetypical Orwellian intrusion, the government’s surveillance of our movements over a considerable time period through new technologies, such as the collection of cell-site-location records, without the protections of the Fourth Amendment, puts our country far closer to Oceania than our Constitution permits. It is time that the courts begin to address whether revolutionary changes in technology require changes to existing Fourth Amendment doctrine.” 809 F. Supp.2d at 127.

It is telling (and somewhat ironic) that the SCA, enacted in 1986 to address the lack of Fourth Amendment privacy protections for stored electronic communications (due to the Fourth Amendment’s third party and private search doctrines at the time), is now being eclipsed by cases such as Warshak, Augustine and In re United States of America for an Order Authorizing the Release of Historical Cell-Site Data.

These three cases serve as an important reminder of the critical role that courts must play to “keep pace with the inexorable march of technological progress,” creating rules that can evolve as technology develops. United States v. Warshak, 631 F.3d at 285. They also serve as a reminder that the SCA was based on what was known about computer technology and computer networks at the time of its enactment, 1986, long before anyone knew about the Internet, e-mail, and the vast array of other new technologies that we use today. It is well recognized that amendment of ECPA is long overdue, and until it is amended, we are likely to see more court decisions like these which break new ground and attempt to resolve the privacy imbalances found in the statute.