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Warshak v. United States

July 21, 2006


The opinion of the court was delivered by: District Judge Susan J. Dlott


This matter comes before the Court on the Motion of Plaintiff Steven Warshak ("Warshak")*fn1 for Issuance of a Temporary Restraining Order (TRO) and/or Preliminary Injunction ("Motion"). (Doc. #11.) For the reasons below, the Court GRANTS IN PART AND DENIES IN PART Warshak's Motion and PRELIMINARILY ENJOINS the United States from seizing, pursuant to court order issued under 18 U.S.C. § 2703(d), the contents of any personal email account maintained by an Internet Service Provider ("ISP") in the name of any resident of the Southern District of Ohio without providing the relevant account holder or subscriber prior notice and an opportunity to be heard.


Warshak filed this lawsuit in June 2006, alleging that the United States violated both the Fourth Amendment to the United States Constitution and certain provisions of the Stored Communications Act ("SCA"), 18 U.S.C. § 2701 et seq., by directing two ISPs to produce certain electronic mail ("email") of Warshak's from their servers pursuant to warrantless search orders issued under the authority of SCA Section 2703(d) ("2703(d) orders"). (Doc. #1-1 at 1-2.) In his present Motion (doc. #11), Warshak seeks to prospectively enjoin the United States from obtaining and enforcing any future 2703(d) orders.

A. Factual Background

In March 2005, the United States was engaged in a criminal investigation into allegations of mail and wire fraud, money laundering, and other federal offenses in connection with the operations of Berkeley Premium Nutraceuticals, Inc. ("Berkeley") a company owned by Warshak. (See, e.g., doc. #1 Ex. 1 at 1.) On May 6, 2005, the United States obtained an order from a United States Magistrate Judge for the Southern District of Ohio directing NuVox Communications, an ISP, to turn over to inspectors or agents of the United States Postal Service and Federal Bureau of Investigation "within three (3) days" "all customer account information for any accounts registered or services rendered to" Warshak or "associated parties," including*fn2

The contents of wire or electronic communications (not in electronic storage unless greater than 181 days old) that were placed or entered in directories or files owned or controlled by [Warshak's accounts] at any time during the hosting of the electronic communications and through the date of this Order . . . . Communications not in "electronic storage" include any e-mail communications received by the specified accounts that the owner or user of the accounts has already accessed, viewed, or downloaded. (Id. at 3.)

The Magistrate Judge noted that the order was issued pursuant to 18 U.S.C. § 2703(d), a subsection of the SCA, and upon a finding that the United States had "offered specific and articulable facts showing that there are reasonable grounds to believe that the records or other information sought are relevant and material to an ongoing criminal investigation." (Id. at 2.) The Magistrate Judge also found that "prior notice of this Order to any person of this investigation of this application and order by the government or NuVox would seriously jeopardize the investigation." (Id.) Accordingly, he ordered the application and order sealed "until otherwise ordered by the Court" and provided that "the notification by the government otherwise required under [SCA subsection] 18 U.S.C. § 2703(b)(1)(B) be delayed for ninety days." (Id.)

On September 12, 2005, the United States obtained a second and virtually identical*fn3 ex parte 2703(d) order against two email accounts apparently maintained for Warshak by Yahoo communications, another ISP. (Doc. #1 Ex. 2.)

On May 31, 2006, over a year after obtaining the NuVox 2703(d) order and nine months after obtaining the Yahoo 2703(d) order, the United States wrote to Warshak to notify him of the orders.*fn4 (Doc. #1 Ex. 1 at 1, Ex. 2 at 1.) The Magistrate Judge had unsealed both orders the previous day, May 30, 2006, apparently on the United States' motion. (See 1:05-mj-135, docs. ##s 3-4 and 1:05-mj-216, docs. ##s 3-4.)

B. Procedural Background

Warshak filed his Fourth Amendment and SCA complaint against the United States on June 12, 2006, approximately two weeks after receiving formal notice of the NuVox and Yahoo 2703(d) orders and seizures. (Doc. #1.) On July 1, 2006, Warshak filed his instant Motion to enjoin the United States from "further implementation and/or use of the SCA to access any [of Warshak's] email communications unless pursuant to a search warrant lawfully issued upon a showing of probable cause, pursuant to the first sentence of 18 U.S.C. § 2703(a), or pursuant to 18 U.S.C. § 2510." (Doc. #11; doc. #1-1 at 15 ¶ 3.)*fn5 The Court held a telephonic hearing with the parties*fn6 on July 5, 2006, after which it took the matter under submission. (Docs. ##s 12, 15.) The Motion is now fully briefed and ripe for review. (Docs. ##s 11, 15, 16, 17.)*fn7


In determining whether to issue a preliminary injunction, the Court must consider (1) whether Warshak has shown a strong or substantial likelihood of success on the merits of his claims against the United States; (2) whether Warshak has shown that irreparable injury will result if no injunction issues; (3) whether the issuance of a preliminary injunction would substantially harm the United States or others; and (4) whether the issuance of a preliminary injunction would serve the public interest. Deja Vu of Nashville, Inc., v. Metro. Gov't of Nashville & Davidson C'ty, 274 F.3d 377, 400 (6th Cir. 2001). For the reasons below, the Court finds that while the broad preliminary injunction sought by Warshak is unwarranted, narrower relief is appropriate to ensure that Warshak's constitutional rights are not infringed pending a final decision on the merits of Plaintiffs' claims.

A. Preliminary Injunction Factors

1. Likelihood of Success on the Merits

Warshak contends that the United States must be enjoined from seeking further 2703(d) email seizure orders because such orders, to the extent they are "premised upon a showing of less than probable cause, clearly do not constitute a judicially issued search warrant" and thus violate the Fourth Amendment.*fn8 (Doc. #11 at 7-8.) Warshak further asserts that he is also entitled to an injunction because future 2703(d) orders of the type the United States used to seize his NuVox and Yahoo emails would be unlawful under the terms of the SCA itself. (Id. at 14.)

a. Fourth Amendment Claim

Section 2703 of the SCA provides, in ...

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