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Email Surveillance and Interception

1) Seizure and Delayed Notice under US law I. Jurisdiction

A. Court did have jurisdiction to order search, since relevant criminal trial II. Statute

A. §2701 et seq (Stored Communications Act) 1. 2701 Prohibits unauthorized access to stored communications, but (c) allows

exception pursuant to 2703, 2704, 2705 a. Would first need to determine if emails fit stored communication: what is

“stored?” i. ECPA § 2510- defines storage as “temporary, intermediate” OR by

service provider for means of back up ii. Here, probably was stored- looking at emails around 180 old iii. In US, information in transit protected more than stored

communications- idea that reducing something to permanent record 2. What would remedies be?

a. §2707 allows to sue for civil action i. But exempts action against service providers if complying with

2703(e), so could not sue Bahtoo for this action ii. And exempts the US

b. § 2712 does allow civil action against the govt under this section, following certain procedures. i. Part (e)- allows for a stay of proceedings if pending investigation or

criminal case, so potential for delayed action here if case ongoing 3. 2703(b): allows the government to seize communications either by warrant if

stored for 180 days or less, OR pursuant to a court order if more than 180 days a. 180 day requirement

i. Some of the later emails requested by the government would be outside 180 days range, so they would be outside the law with regard to these emails

b. To use court order for the remaining emails, would first need to decide if reasonable expectation of privacy, per Warshaw case

i. Here, we also have his signed authorization- is there a reasonable expectation of privacy?

ii. Third party rule: doctrine that giving info to third party (ie in an email), there is no longer an expectation of privacy

iii. Per Warshaw case, expectation of privacy can still exist if terms of service only allow disclosure under limited circumstances, not as part of normal course of business

iv. Here, Bahtoo’s terms are limited, prompted by outside reasons for invasion of that privacy

v. So, per Warshaw court, would need to use probable cause standard, not reasonableness standard

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vi. Not clear if there was probable cause here, but possibly not since govt decided not to obtain a warrant

4. If no reasonable expectation of privacy, could use court order and potentially allow delayed notification per 2705(d) a. Delayed notification allowed if reason to believe that certain adverse effects

may occur from notification, including tampering with the evidence or interfering with the investigation

b. Must have specific & articuiable facts showing relevance and need to subpoena the information

c. Here, the government would have to show that records used are necessary for the investigation and that telling Pearce would compromise their investigation

d. If captured more than the necessary information and records, may be in violation of statute because records gathered not relevant to investigation

e. BUT delay may only last 90 days unless govt applies for extension i. Longer than 90 days here, so would be in violation if no extension

obtained B. Fourth Amendment

1. Per Warshaw, would still be subject to Fourth Amendment probable cause standards if there was an expectation of privacy

2. Search would have to be specific, which it seems to be here 3. Would need to obtain a warrant, which means that Pearce would need to be

notified

2) Can Pearce prevent future seizures I. Pearce would want injunction against future searches, against govt using the

information, and against the information getting out II. Based on the ruling in (2nd) Warshaw v. US, the court may find that Pearce will

likely not have standing to file an injunction to prevent future searches, and that this claim would not be ripe for review if the government has no plans to make further searches A. The 6th Circuit in this case also rejected a facial challenge to the constitutionality

of §2705(d). B. Pearce could try this tactic in another jurisdiction, but facial challenges are

typically unsuccessful. III. But if expectation of privacy

A. May be able to force warrant to issue, rather than court order B. If Pearce notified, could then file for an injunction because would have standing

and would be ripe for consideration 3) Legal under German law?

I. Section 94 of the German Code of Criminal Conduct allows evidence for an

investigation to be seized by officials, but only if not surrendered voluntarily

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II. Section 98 permits a judge to order a seizure A. May also seize w/ consent B. Can also seize w/o court order in ltd circumstances, must obtain w/in 3 days

III. 2 BvR 902/06- this case upholds the constitutionality of § 94 as it pertains to the search and seizure of emails saved on the provider’s email server A. The case reiterates, though, that the email account holders be notified first, so

the delayed notification action in this case would be illegal under German law

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MEMORANDUM

RE: Seizure and delayed notice of email data by the government

Facts

M. Pearce established an email account with Bahtoo and

checked a box affirming that he “read and understood Bahtoo’s

privacy policy.” A provision of the privacy policy states that

Bahtoo may share personal account holder information with other

people if Bahtoo believes that it is necessary to investigate

illegal activities. Federal agents suspected M. Pearce of email

fraud. Federal agents received a court order demanding Bahtoo

transmit emails stored in Pearce’s archive that were stent

between 1/1/2008 and 6/31/2009. Email communications were

seized around February 2010. Pearce did not receive notice of

the seizure until 6/16/2010.

Questions Presented

I. Were the government’s seizures of Pearce’s stored emails

legal according to U.S. law?

II. Was the notice period given to Pearce legal according to

U.S. law?

III. Is Pearce able to prevent further seizures?

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Short Answers

I. Yes. Seizure was authorized Under § 2703(a)of the

Electronic Communications in Storage Act (“ECSA”), whereby the

government may seize email data from a service provider under

court order.

II. No. Under § 2705(a)(1)(A) and (B) of the ECSA, the

government may delay notice for a maximum of two ninety-day

periods with court order, if the court determines that the

subpoena may have an adverse result described in § 2705(a)(2).

III. No. Pearce will not be able to prevent further seizures

because it is unlikely that he will be subject to unlawful

actions by the authorities in the future.

Discussion

I. THE GOVERNMENT’S SEIZURE OF PEARCE’S EMAIL ACCOUNT DATA WAS AUTHORIZED WITHIN THE MEANING OF 18 U.S.C. § 2703(a).

It is unlawful to access, without authorization, a facility

though which an electronic communication service is provided.

18 U.S.C. § 2701(a)(1). A government agency may require an

email service provider to disclose stored communications

pursuant to court order. 18 U.S.C. § 2703(a). A court order

shall be issued according to procedures outlined in U.S.C §

2518. A communication is “stored” if it is “held or maintained”

on a remote computing processor. 18 U.S.C. 2703(b)(2). A court

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order is not required in an emergency situation where the

government agency reasonably determines that there is an

imminent danger to any person’s health or safety, a threat to a

national security interest, or indications of organized crime.

18 U.S.C. 2518(7)(a). There is no cause of action against a

provider of email services when a government agency seizes

stored communications by issue of court order. 18 U.S.C. §

2703(e).

Federal agents in the investigation against M. Pearce

suspected him of running a Ponzi scheme and conducting email

fraud and obtained a court order allowing the seizure of

communications sent or received between January of 2008 and June

of 2009. Generally the officers would not have had the right to

access Pierce’s email data without issuance of a court order

unless there was a clear threat to public health and safety.

The communications in this case were stored communications

because they were kept on Bahtoo’s server for more than eight

months and were not intercepted as communications in transit.

Bahtoo was also entitled to release the stored information in

accordance with its own privacy policy, and because it is

exempted from any cause of action when its actions are taken by

demand of the court order.

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Given the fact that the government agency was pursuing

Pierce’s email data upon suspicion of email fraud, and according

to court order, there was no violation of any of Pierce’s rights

at the time the data was seized.

II. THE GOVERNMENT WAS REQUIRED TO GIVE PEARCE NOTICE NO LATER THAN ONE HUNDRED AND EIGHTY DAYS FROM THE DATE OF SEIZURE. a) 18 U.S.C. § 2705 allows for delay of notice for no longer

than one hundred and eighty days.

Prior notice of seizure of stored communications that

have been stored for more than 180 days is required when a

court order is issued, unless there is reason for delayed

notice. 18 U.S.C. § 2703(b). The government may delay

notice for a maximum of two ninety-day periods with court

order, if the court determines that the subpoena may have an

adverse result. 18 U.S.C. § 2705(a)(1)(A) and (B). An

adverse result includes potential for flight from prosecution

and destruction or tampering with evidence. 18 U.S.C. §

2705(a)(2).

Pearce did not receive notice of the seizure until June

15, 2010, which was approximately four months subsequent to

the government’s seizures of his email data. In this

situation the government must petition the court for an order

allowing for delayed notice to Pearce. There is no evidence

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that the government obtained right to delay notice to Pearce.

Even if the government had obtained delayed notice at the

time the court order was issued, that would delay the need to

give Pearce notice by only ninety days. Because Pearce was

only given notice after more than ninety days from the time

of seizure, an additional extension would also be required

for the government to delay notice further.

The government did not apparently request delayed notice

pursuant to 18 U.S.C. § 2703(b), and as such was not granted

the ability to delay notice to Pearce. The government was

required to give Pearce notice prior to the seizure and the

seizure without notice was a violation of Pearce’s rights and

was unlawful according to U.S. law.

b) The Fourth Amendment of the Constitution prohibits

unreasonable searches and seizures when there is a reasonable

expectation of privacy.

The Fourth Amendment to the U.S. Constitution protects

against unreasonable searches and seizures. U.S.C.A. Const.

Amend. 4. An individual is protected against unreasonable

searches and seizures when there is a reasonable expectation

of privacy. Id. “Individuals maintain a reasonable

expectation of privacy in e-mails that are stored with, or

sent or received through, a commercial internet service

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provider.” Warshak v. United States, 490 F.3d 455, 469 (6th

Cir. 2007). An email account is analogous to a phone account

or a lock-box held at a bank, and the user of the service is

entitled to protection against unreasonable searches and

seizures unless allowed through due process of law. Id. at

473. Seizure of emails by authorities without notice and

without support of statutory law is a violation of the

Constitution’s Fourth Amendment. Id. at 480.

Pearce had a reasonable expectation of privacy of his email

account, and the government violated Pearce’s right to be free

of unreasonable searches and seizures by obtaining his stored

email communications without prior notice. The court in

Warshak made it clear that there was a reasonable expectation

of privacy even with telephone conversations and lock-box

accounts. The fact that Pearce apparently agreed to a privacy

policy of Bahtoo does not limit his expectation of privacy

because such agreements are arguably adhesion contracts, and

it is commonplace for such agreements to be signed when

engaging in business. The privacy policy also may have given

the right to Bahtoo to give the information to the government,

but it did not authorize the government to seize the

information without notice to Pearce.

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Pearce had a legal expectation of privacy regarding his

prior email communications, and the government violated his

Fourth Amendment right to be free from unreasonable searches

and seizures because it did not provide prior notice to

Pearce. Pearce had no opportunity for judicial review prior

to the seizure of his emails and as such his expectation of

privacy was violated.

III. PEARCE WILL NOT BE ABLE TO PREVENT FURTHER SEIZURES BY THE

AUTHORITIES BECAUSE HIS CLAIM FOR FUTURE DAMAGE WOULD NOT YET BE

RIPE, AND BECAUSE EQUITABLE REMEDIES ARE NOT AVAILABLE AGAINST

THE UNITED STATES UNDER U.S.C. 18 § 2707(b).

a) Pearce’s claim is not yet ripe.

Ripeness is a reason for refusing jurisdiction and is drawn

from Article III of the Constitution. National Park

Hospitality Association v. Department of Interior, 538 U.S.

803, 808 (2003). A claim is ripe when it is likely to come to

pass, and there would be a hardship to the parties if denied

court consideration. Abbott Labs. v. Gardner, 387 U.S. 136,

149 (1967). In Lyons, the Supreme Court decided that the

plaintiff’s action, seeking an injunction against the

government to prevent it from using a “choke hold” on him in

the future, was not ripe because there was little likelihood

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that he would be subjected to such treatment in the future.

Los Angeles v. Lyons, 461 U.S. 95, 102.

Pearce is unlikely to be successful in obtaining an

injunction against federal agents to prevent the further

seizure of his email data because any claim for future harms

incurred would not yet be ripe. According to Abbott Labs,

Pearce would need to show that further intrusion on his rights

to be likely to occur. It is unlikely that the government,

especially if found to be in violation of Pearce’s statutory

or Constitutional rights, would infringe on Pearce’s rights in

the future. In this case the government went through the

correct procedures for obtaining a court order and erred only

in not providing adequate notice to Pearce. Given the

admonition of the court, and the protection of the statute,

there is no reason to believe that the government would be

likely to pursue illegal means of surveillance of data

gathering. This situation is analogous to that in Lyons,

where the courts refused to issue an injunction against law

enforcement officials to prevent them from using a “choke

hold” on the plaintiff in the future. Here, Pearce’s rights

have been violated in the past, but there is no reason to

believe that his rights will be violated in the future.

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Pearce would also need to show that he would be subject to

hardship if the injunction were denied by the court. There is

an argument that Pearce’s First Amendment rights to freedom of

speech would be “chilled” by the prospect of future violations

by law enforcement officials, however; given the fact that the

government is restrained by statute and the Constitution in

its pursuit of user email data, it is not logical for Pearce

to fear any ongoing effects as the result of prior failure of

notice. If this claim were ripe, all email users could assert

a cause of action for an injunction on the basis that the

government may impinge on Constitutional rights at some point

in the future.

b) The United States is exempted from equitable relief under

U.S.C. 18 § 2707(b).

In a civil action to recover for violation of U.S.C. 18 §

2701, an aggrieved party may be awarded equitable relief from

the person or entity, other than the United States, which

engaged in the violation. U.S.C. 18 § 2707. (Emphasis

added). Here, even if Pearce is successful in a claim against

the government for violations of the ECSA, he will not be

entitled to an injunction because the United States is

exempted from equitable relief under the statute.

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Conclusion

Seizure of Pearce’s stored email communications was

authorized Under § 2703(a) of the Electronic Communications in

Storage Act, whereby the government may seize email data from a

service provider under court order. Pearce was entitled to

notice because the government did not request delayed notice

under § 2705(a)(1)(A) and (B) of the ECSA. Pearce will not be

able to prevent further seizures because it is unlikely that he

will be subject to future violations by the government.

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• Outline: o Available remedies:

s.2707(b) – relief Pearce can obtain (and most likely would like to obtain)

injunctions against Bahtoo to not disclose any more emails Money damages against Bahtoo for illegally giving up his

emails that may end up causing him damage Attorney fees

s.2712 – civil actions against the US government Pearce can sue for actual damages inflicted by the unlawful

seizure of his emails litigation costs

o 3.1 - legal under SCA? Issue

was the court order with delayed notice legal? Rule

Warshak – in order for the gov. to utilize a court order under s.2703(b)(1)(B)(ii) along with s.2705 delay of notification, the challenger must not have had a reasonable expectation of privacy, otherwise the more strict probable cause standard of the 4th Amendment must be used to seize emails

Analysis Pearce's side

There was still a reasonable expectation of privacy because the content of the emails were still a private matter, and the fact that they were stored on a third-party's servers does not extinguish this expectation

Government Giving the emails over to a third party extinguishes

the reasonable expectation of privacy, as evidenced by the privacy policy agreed to by Pearce

Pearce The reasonable expectation of privacy is

extinguished only if Bahtoo actually monitored the actual content of the emails, which there is no evidence of.

The privacy policy only stated that Bahtoo may share personal information, not the actual content of the emails

Conclusion The government will likely lose on this issue because the

delay of notification was not appropriate in this situation

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because Pearce still had a reasonable expectation of privacy with respect to his emails.

o 3.2 Looking to s.2707, Pearce can enjoin Bahtoo from giving his

emails to the government unless proper procedures are followed. If the seizure was found to be not legal, the government would have to get the emails by a search warrant or a court order WITHOUT a delay of notice to Pearce

o 3.3 Rule

“Where emails saved on a provider's mail server are, by way of exception, seized without the knowledge of the email account holder, he or she is to be informed of that fact as early as the effective fulfillment of the purpose of the investigations permits.”

Analysis Pearce will argue that the notice was not soon enough, as 4

months after the emails were seized is not as early as the government could have

The government will argue that notice was as early as possible, as investigators had to parse through a year and a half worth of emails, and all this took time

Conclusion The government will likely win because the issue of

whether the government gave notice as soon as possible cannot really be refuted by Pearce, as the government can likely reasonably prove that they notified as soon as possible based on how arduous the investigation was.