Preliminary injunction granted against government obtaining e-mails without notice under Stored Communications Act

Preliminary injunction granted against obtaining e-mail records without notice to the subscriber under the Stored Communications Act. Warshak v. United States, 2006 U.S. Dist. LEXIS 96390 (S.D. Ohio July 21, 2006):

While emails sent through and stored on the servers of commercial ISPs are obviously distinguishable in many respects from both sealed letters and postcards physically mailed via public or private carrier, the letter analogy appears — on the limited evidence presently before the Court — to be more apt. As Warshak persuasively argues:

[I]n the case of email, the subscriber perhaps maintains more control over the email lettter than in any other traditional third party carrier context. In the latter scenarios, the sender or receiver of a closed letter or package actually relinquishes control of the container and cannot immediately repossess the letter or package — it is in the physical possession of the postal carrier and/or common carrier outside the dominion and control of the sender or recipient. In the email context, the owner of the email can repossess a read-and-then-closed email at any moment, without any notice or permission from the ISP, can retake the email, delete the email from his mailbox, or do what she wants to do with the email ….

(Doc. # 11 at 10 (emphasis added).) The United States has asserted in its papers and at oral argument that the privacy expectations attributed to letters entrusted to third-party carriers are inapposite to emails entrusted to commercial ISPs, because ISPs and individual account holders routinely both reserve and exercise rights to open, delete, or turn over personal emails to law enforcement. As the parties noted at oral argument, however, the terms of service governing email accounts can vary from ISP to ISP. At oral argument, Warshak also challenged the United States’ assertion that ISPs routinely “access” the emails in their subscribers’ individual accounts in any meaningful Fourth Amendment sense. Although Warshak did not appear to contest the United States’ more specific assertion that ISPs can and do screen emails for objectively damaging or illegal content such as viruses or child pornography, 10 he strenuously disputed the presumption that employees of commercial ISPs open and read — or their subscribers reasonably expect them to open and read — individual subscriber emails as a matter of course.

. . .

While the Court is prepared to reconsider its views upon the presentation of further evidence on these points, it is not persuaded — as an initial matter — that an individual surrenders his reasonable expectation of privacy in his personal emails once he allows those emails (or electronic copies thereof) to be stored on a subscriber account maintained on the server of a commercial ISP. 11 As such, the Court finds that Warshak has shown a substantial likelihood of success on the merits of his Fourth Amendment claim. The first factor of the preliminary injunction test thus weighs in favor of relief. Deja Vu, 274 F.3d at 400.

Taxicab that defendant was riding in was not validly stopped. There was neither a traffic offense nor reasonable suspicion justifying a stop. Also, the officers claimed there was a “TRIP” decal in the rear window that the taxicab was subject to random stops. Being in the back window does not put a passenger on notice. United States v. Stewart, 2007 U.S. Dist. LEXIS 45883 (S.D. N.Y. June 13, 2007):

Taxicabs approach customers from significant distances, at significant speeds, at different times of day and night, and in different neighborhoods, with different apprehensions of danger. Passengers do not have time to reflect on the decals adorning the taxicab.

There was no proof that Stewart saw the decals or otherwise surrendered his reasonable expectation of privacy given to him by state and federal law when he entered Jimenez’s taxicab. Again, there was no proof that Officers Torres and Regnier were aware of, or saw, any TRIP decals. Nor was there proof that the owner of Jimenez’s taxicab, or Jimenez, had enrolled in the program or, if either had enrolled, that he had maintained his enrollment. Thus, the two cases that uphold a TRIP stop do not apply. See Woodrum, 202 F.3d at 5(police “aware of the decals” affixed to taxicab); Abad, 98 N.Y.2d at 15 (officers “saw a TRIP decal on [the] vehicle” before commencing stop); United States v. Harrell, 268 F.3d 141, 149 n.3 (2d Cir. 2001) (justification based upon observation of traffic violation would turn upon whether the officer “noticed … the [violation] before he stopped the car”). After-the-fact justifications cannot justify an unauthorized stop. See Swindle, 407 F.3d at 569; United States v. Como, 340 F.2d 891, 893 (2d Cir. 1965).

A civil claim for false arrest under § 1983 can be defeated by actual probable cause or “arguable probable cause.” “Furthermore, in the context of qualified immunity analysis, the issue is not whether actual probable cause existed but instead whether there was ‘arguable probable cause’ for the plaintiffs arrest. See Davis v. Williams, 451 F.3d 759, 762-63 (11th Cir. 2006)(stating that in the context of a claim for false arrest, an officer is entitled to qualified immunity where that officer had ‘arguable probable cause’ to effectuate the arrest).” Whittington v. Town of Surfside, 490 F. Supp. 2d 1239 (S.D. Fla. 2007).*