Government Access to Stored Communications – Warshak and Gomboc Compared

Yesterday’s United States Court of Appeals for the Sixth Circuit finding that e-mail held by a service provider cannot be accessed without a warrant has already been much discussed. For good American commentary, see blog posts by Professors Paul Ohm and Orin Kerr and the Electronic Frontier Federation’s news release. This is a short note to identify the links with our recent Supreme Court of Canada decision in R. v. Gomboc.

The American decision, United States v. Warshak, is very much about the societal value of confidential e-mail communications. The Court recognizes such value and grants it appropriate constitutional protection: “Email is the technological scion of tangible mail, and it plays an indispensable part in the Information Age.”

Our decision, Gomboc, is about detailed residential power consumption information accessed by the police through an electrical service provider. There is little question that power consumption information is less deserving of protection than e-mail, but both Gomboc and Warshak also address two technical issues of significance. One issue relates to the significance of commercial terms of service on privacy expectations and another relates to customers’ privacy interest in a service provider’s business information and records.

On the significance of commercial terms of service on privacy expectations, the Sixth Circuit says:

Again, however, we are unwilling to hold that a subscriber agreement will never be broad enough to snuff out a reasonable expectation of privacy. As the panel noted in Warshak I, if the ISP expresses an intention to “audit, inspect, and monitor” its subscriber’s emails, that might be enough to render an expectation of privacy unreasonable. See 490 F.3d at 472-73 (quoting United States v. Simons, 206 F.3d 392, 398 (4th Cir. 2000)). But where, as here, there is no such statement, the ISP’s “control over the [emails] and ability to access them under certain limited circumstances will not be enough to overcome an expectation of privacy.” Id. at 473.

In Gomboc, seven out of nine judges held that a regulation and related contractual term that effectively put customers on notice that their consumption information could be provided to the police was a relevant factor in deciding whether the information desired Charter protection. The Sixth Circuit does not appear to give any weight at all to the commercial terms raised by the United States government in the circumstances, but its mid-ground position seems similar to that taken by our Supreme Court of Canada.

On customers’ privacy interest in a service provider’s business information and records, the Sixth Circuit distinguished United States v. Miller, in which the Supreme Court of the United States held that a bank depositor does not have a reasonable expectation of privacy in the contents of bank records, checks, and deposit slips. It said:

But Miller is distinguishable. First, Miller involved simple business records, as opposed to the potentially unlimited variety of “confidential communications” at issue here. See ibid. Second, the bank depositor in Miller conveyed information to the bank so that the bank could put the information to use “in the ordinary course of business.” Ibid. By contrast, Warshak received his emails through NuVox. NuVox was an intermediary, not the intended recipient of the emails. See Bellia & Freiwald, Stored EMail, 2008 U. Chi. Legal F. at 165 (“[W]e view the best analogy for this scenario as the cases in which a third party carries, transports, or stores property for another. In these cases, as in the stored e-mail case, the customer grants access to the ISP because it is essential to the customer’s interests.”). Thus, Miller is not controlling.

This idea is applied by Deschamps J. in Gomboc, but given an electricity service provider is not merely an intermediary in relation to power consumption information, to the opposite outcome. She says:

A final factor affecting the informational privacy analysis and diminishing Mr. Gomboc’s expectation of privacy in the information disclosed by the DRA is the fact that his interest in the electricity use data was not exclusive. His electricity consumption history was not confidential or private information which he had entrusted to Enmax. As the supplier of electricity, Enmax had a legitimate interest of its own in the quantity of electricity its customers consumed.

The confidentiality of e-mail and other stored communications held by Canadian service providers is of obvious significance, but the issue most litigated right now relates to the identification of anonymous internet users via service provider requests. Warshak illustrates that Gomboc is not the judicial pronouncement that law enforcement needs to prevail in these matters.

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