CA3: Work email subpoena gets QI in § 1983 case; law still evolving. Kerr: Confusing?

A prosecutor and state investigator subpoenaed plaintiff’s work emails from Penn State. They get qualified immunity because there was no clearly established law that the subpoena was invalid. Plaintiff argues the evolving standards of the reasonable expectation of privacy in work emails, but case law from other jurisdictions doesn’t carry the day in light of qualified immunity. Plaintiff seeks to amend to plead the Stored Communications Act, and the case is remanded for that. Walker v. Coffey, 2018 U.S. App. LEXIS 26864 (3d Cir. Sep. 20, 2018):

Several months later [after Quon], the Sixth Circuit took a different approach in United States v. Warshak. In Warshak, law enforcement agents, relying on section 2703(b) of the SCA, had obtained a subpoena compelling Warshak’s ISP to produce the contents of approximately 27,000 emails sent or received from Warshak’s account. Warshak moved to suppress, arguing that the government’s warrantless search and seizure of his emails violated his Fourth Amendment rights. After reviewing the case law discussed above, the Sixth Circuit concluded that, “[g]iven the fundamental similarities between email and traditional forms of communication, it would defy common sense to afford emails lesser Fourth Amendment protection.” The court found that an ISP is “the functional equivalent of a post office or telephone company,” and, as a result, “the government cannot compel a commercial ISP to turn over the contents of email without triggering the Fourth Amendment.” Addressing the potential applicability of the third-party doctrine, the Sixth Circuit, drawing on Katz and Smith, held that the “mere ability” of an ISP to access the content of emails is not “sufficient to extinguish a reasonable expectation of privacy.” The Sixth Circuit distinguished Miller on the grounds that Warshak’s ISP, unlike the bank in Miller, was an intermediary rather than the intended recipient of the material in question.

Walker argues, in short, that Warshak should carry the day. She characterizes the Sixth Circuit’s decision as a straightforward and modest application of the Supreme Court’s precedents on mail and telephone communications to the field of electronic communications. But Walker has failed to identify, nor can we, a “robust consensus of cases of persuasive authority” supporting the position she advances. To the contrary, at present Warshak remains closer to a lonely outlier than to a representation of consensus. Although Warshak arguably tracks a longstanding distinction in Fourth Amendment law between content and metadata, that distinction is not dispositive, as content is not uniformly protected. As Quon and Rehberg recognized, electronic communications present new considerations, and perhaps distinguishing features, that may counsel caution rather than a rote application of older precedents addressing other forms of communication. Moreover, the Fourth Amendment issues in Warshak arose in the context of suppression of evidence. Thus, the Sixth Circuit did not face the question that we must answer: whether the particular Fourth Amendment right was clearly established.

As such, we would be hard put to find that Walker enjoyed a clearly established right to privacy in the content of her work emails. But because this case involves Walker’s work emails, which were produced to law enforcement by her employer, Penn State, our inquiry does not end there. As explained below, those facts remove any doubt that Walker has failed to allege a violation of a clearly established constitutional right.

Orin Kerr tweeted:

This is a very confusing opinion. It’s a govt workplace search case, but the court has that mixed up w/other lines of cases.

Close enough for government work.

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