1. The District Court erred in denying Matt Powell’s motion to suppress evidence, on the grounds that there was no Fourth Amendment violation because although Matt Powell had manifested a subjective expectation of privacy in his stored e-mail, that expectation was not one that society was prepared to recognize as reasonable.

Standard of Review

Whether a subjective expectation is objectively reasonable is a matter of law subject to de novo review. United States v. Welliver, 976 F. 2d 1148, 1151 (8^th Cir. 1992). The Court should therefore apply the de novo standard of review.

A. Scope of Fourth Amendment protection

The Fourth Amendment protects against unreasonable searches and seizures, and prescribes criteria for the granting of search warrants.

Whether the Fourth Amendment's reasonableness and warrant requirements apply to an inspection, depends upon whether that inspection constitutes a search. Based on Justice Harlan's concurring opinion in United States v. Katz, 389 U.S. 347 (1967), the Supreme Court has developed a two-part test to determine whether a given inspection is a search. First, if government action has violated an individual's subjective expectation of privacy, and second, if society recognizes that expectation as reasonable, then the inspection is a search, and the protections of the Fourth Amendment apply. Id. at 361. Furthermore, in Rakas v. Illinois, 493 U.S. 128, 143 (1978) and Minnesota v. Olson, 495 U.S 91, 95-96 (1990) the Court held that a subjective expectation of privacy is legitimate if it is one that society is prepared to recognize as reasonable.

The District Court found that Matt Powell did manifest a subjective expectation of privacy in his stored e-mail account with COL. Thus, Matt Powell met the first part of the Supreme Court test enunciated in Katz. However, it is with respect to the second part of the test that we part from the District Court’s finding. The Court’s arguments are unpersuasive in finding that Matt Powell did not have an expectation of privacy, in his stored e-mail, that society accepts as reasonable.

The development of new technologies create interesting challenges to long established legal concepts. United States v. Maxwell, 45 M.J 406, 410 (1996). It is imperative that the law be adapted to meet the changes and rapid advancement in science. Thus, in order for the law to meet the changes of technology, the scope of Fourth Amendment must be re examined.

B. Expectation of privacy in e-mail

In United States v. Maxwell, 45 M.J 406 (1996), the Court was called upon to examine the reasonableness of one’s expectation of privacy in electronic mail. The Court, in Maxwell held that under the circumstances, there was a reasonable, albeit limited, expectation of privacy in e-mail messages sent and or received on America On Line (AOL). Maxwell, 45 M.J at 417. In Maxwell, it was AOL's policy not to read or disclose subscribers' e-mail to anyone except authorized users. Thus, AOL offered its own contractual privacy protection to its customers in addition to federal statutory protections. Id. Likewise, in the present case, Paragraph 8(i) of the Terms of the Service Agreement states that it is COL’s policy to "respect the privacy of personal electronic communications." In Maxwell, it was AOL's practice to guard private communications and only disclose them to third parties if given a Court order. Id. Similarly, Paragraph 8(i) of the COL Terms of Service Agreement provides that COL will not intentionally monitor or inspect the contents of an electronic message sent by one member to another individual or disclose the contents of any personal electronic communications to an unauthorized third party, except as required or permitted to do so by law. In Maxwell, the Court stated that while implicit promises or contractual guarantees of privacy by commercial entities do not guarantee a constitutional expectation of privacy, Maxwell possessed a reasonable expectation of privacy, albeit a limited one, in the e-mail messages that he sent and or received on AOL. Id. Likewise, in the present case, though the contractual guarantees of privacy by COL did not guarantee a constitutional expectation of privacy, Matt Powell possessed a reasonable expectation of privacy in the e-mail that he sent and or received on COL. The Maxwell Court went on to state that expectations of privacy in e-mail have limitations. Id. The user of an e-mail network may enjoy a reasonable expectation that his or her e-mail will not be revealed to the police. Maxwell, 45 M.J at 418. There is the risk that an employee or other person with direct access to the network service will access the e-mail, despite any company promises to the contrary. Id. In the Maxwell case, a subscriber of AOL reported to the press that child pornography was being distributed on AOL. The press contacted AOL representatives, who then called the FBI. Maxwell, 45 M.J at 412. The Court held that any of the material or information seized and turned over to the FBI was fair game for introduction into evidence and for use in procuring a search warrant. However, once the Government wanted to search the computer files, a warrant was required. Maxwell, 45 M.J at 419. In the present case, Kassie Gibbs, a subscriber to COL contacted her local police department. The police department obtained a copy of the e-mail from Kassie Gibbs and sent it to the local FBI Office. The copy of the e-mail turned over to the FBI, thus was fair game for introduction into evidence and for use in procuring a search warrant. However, as held in Maxwell, once the Government wanted to search the back-up files, a warrant was required.

The Supreme Court held in O’Connor v. Ortega, 480 U.S. 709, 717 (1987) that a government employee has a reasonable expectation of privacy in his office, even though his employer retains the right to enter the office for business purposes. A telephone operator has the ability to monitor phone conversations, and may listen to parts of them for administrative purposes. However, that does not render unreasonable an expectation of privacy in those conversations. A Fourth Amendment Model for Computer Networks and Data Privacy, Va. L.Rev. 1181, 1201-04. Similarly, in the present case, the system operator of COL had the ability to monitor Matt Powell’s e-mail. However, that right was predicated upon the peculiarities of the technology involved to serve and benefit the subscribers of COL. That ability does not constitute a disclosure of that e-mail to the sysop, thereby vitiating a reasonable expectation of privacy in that communication. See, Keeping Secrets in Cyberspace: Establishing Fourth Amendment protection for Internet Communication,110 Harv. L. Rev. 1591, 1601.

C. Consent not implied from mere property interest

In determining whether an individual's Fourth Amendment rights have been violated, property ownership is a factor to be considered, but it is not determinative. United States v. Salvucci, 448 U.S. 83, 91-93, 100 S.Ct. 2547, 2553, 65 L.Ed.2d 619 (1980). The Supreme Court, in United States v. Matlock, 415 U.S. 164, 171 (1974) held that common authority to search is not to be implied from the mere property interest of the third party in the property. Therefore, the fact that a user of an electronic communications system does not own either the equipment or the memory in which such communication is stored does not render unreasonable, an expectation of privacy in the communication. See Keeping Secrets in Cyberspace: Establishing Fourth Amendment Protection for Internet Communication, 110 Harv. L. Rev. 1591, 1602. In Mancusi v. DeForte, 392 U.S. 364, 368 (1968), the Supreme Court held that capacity to claim the protection of the Fourth Amendment does not depend on a property right in the invaded place, but upon whether the area was one in which there was a reasonable expectation of freedom from governmental intrusion. Therefore, a system operator may not necessarily possess the authority to consent to a search. It follows that an authority, of the COL systems operator to consent to a search, was not implied merely by virtue of a property interest in the back-up files.

D. Terms of Service Agreement

The Terms of Service Agreement between Matt Powell and COL contained the following clauses.

Paragraph B(ii):Upon enrollment as a member of COL, you will select a unique password. You are responsible and liable for any harm resulting from disclosure or allowing disclosure of any password or from use by any person of your password to gain access to Member accounts. Therefore, for security purposes, we recommend that you change your password often. Although COL offers a feature that will allow you to bypass the password protection, please remember that this feature permits anyone who has access to your computer to easily access your account. Use of this password bypass feature is at Member’s own risk.

Paragraph B(iv):Unless a Member elects otherwise, COL makes limited information concerning its Members available to selected vendors for the purpose of providing Members with information about related products and services. However, COL does not disclose to private persons or companies information that identifies a Member’s COL screen name(s) with Members actual names or other identity information, unless required to do so by law or legal process served on COL. COL reserves the right to make exceptions to this policy of non-disclosure in exceptional circumstances (such as suicide threat, or instances of suspected fraud) on a case by case basis and at COL’s sole discretion. COL intends to abide by applicable laws governing the disclosure to governmental entities of screen names, member information and other records. When responding to legal process served on COL by non-governmental entities, unless otherwise ordered, COL will make reasonable efforts to notify affected Member(s) in advance of releasing this information in order to provide Member(s) with an opportunity to persue available legal process.

Paragraph C(iii):A Member agrees to use COL services only for lawful purposes. COL prohibits the transfer on COL of any unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, profane, hateful, racially, ethnically or otherwise objectionable material of any kind, including but not limited to, any material that encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national, or international law.

Paragraph E (vi):COL retains daily back up files of all e-mail for twelve (12) months. Current e-mail is stored for customer retrieval for nine (9) months. COL makes no warranties of any kind with respect to its e-mail service and is not responsible for any message which may be misprocessed by COL. COL reserves the right to change its e-mail storage and retrieval practices at anytime without notice.

Paragraph 8 (i):It is COL’s policy to respect the privacy of personal electronic communications. COL will not intentionally monitor or inspect the contents of an electronic message (e-mail) sent by one member to another individual, or disclose the contents of any personal electronic communication to an unauthorized third party, except as required or permitted to do so by law. COL reserves the right to cooperate fully with local, state, or federal officials in any investigation relating to any content, including private electronic communications, transmitted on the COL service or the activities of any Member.

In the Terms of Service Agreement, COL requires that customers select a password to protect their e-mail account, and suggests that the password be changed often. The e-mail account of a customer can be analogized to a closed container, and the password selected by a COL customer to protect his stored e-mail can be analogized to a key for a closed container. In Robbins v. California, U.S. 420, 426 (1981), the Court held that by placing information within "a closed, opaque container," an individual manifests an objectively reasonable expectation of privacy in that information. Matt Powell selected a unique password to protect his e-mail account. That password functioned like a key to a closed container or a seal on a letter. That password protected from view the contents of the e-mail account until the password was entered. Therefore, by placing information within "a closed, opaque container"-an e-mail account, Matt Powell manifested an objectively reasonable expectation of privacy in the information contained in that account.

The Terms of Service Agreement also provided that COL intended to abide by the applicable laws governing any disclosure of private electronic communications to governmental entities. Although, COL reserved the right to cooperate fully with government authorities in any investigation relating to private electronic communications, transmitted on COL, there was no express provision in the Terms of Service Agreement that COL would co-operate with the Government in violation of statutory mandates. In the factually similar case of Maxwell, 45 M.J. 406, 419 (1996), the court held that once the Government wanted to search the computer files, a warrant was required. Similarly, in this case, the FBI required a warrant prior to conducting a search of the back-up files.

E. The Electronic Communications Privacy Act, 18 U.S.C Sections 2701-2711

Sections 2701-2711 fall under Title II, and form part of Chapter 121 of the Electronic Communications Privacy Act. Title II addresses access to stored wire and electronic communications and transactional records. It is modeled after the Right to Financial Privacy Act. S. Rep. No. 541, 99TH Cong., 2nd Sess. 1986, U.S.C.C.A.N. 3555, 1986 WL 31929 (Leg.Hist.). The Right to Financial Privacy Act of 1978, 12 U.S.C.A.§ 3401, was intended to provide certain customers of financial institutions with a right, where none existed constitutionally, to protect the privacy of individual financial records or related information held by financial institutions. This right, though, is limited since it curbs the unfettered access to those records only by government authorities, while protecting the government's interest in obtaining disclosure of records relevant to a legitimate law enforcement investigation or financial supervisory activity. To insure privacy, access to records by a government authority as well as their disclosure by a financial institution is subject to certain requirements. 112 A.L.R. Fed. 295 (1993).

The Electronic Communications Privacy Act amends title III of the Omnibus Crime Control and Safe Streets Act of 1968. The bill [ECPA] amends the 1968 law to update and clarify Federal privacy protections and standards in light of dramatic changes in new computer and telecommunications technologies. S. Rep. No. 541, 99TH Cong., 2nd Sess. 1986, U.S.C.C.A.N. 3555, 1986 WL 31929 (Leg.Hist.). The Committee on the Judiciary, to which the bill was referred, said that there were no Federal statutory standards to protect the privacy and security of communications transmitted by new non-common carrier communications services or new forms of telecommunications and computer technology. Id. This is so, even though American citizens and American businesses are using these new forms of technology in lieu of, or side-by-side with, first class mail and common carrier telephone services. Id. This gap results in legal uncertainty. Id. [The lack of protection] may unnecessarily discourage potential customers from using innovative communications systems. Id. Further, the lack of clear standards may expose law enforcement officers to liability and may endanger the admissibility of evidence. Id. Most importantly, the law must advance with the technology to ensure the continued vitality of the Fourth Amendment. Id. Privacy cannot be left to depend solely on physical protection, or it will gradually erode as technology advances. S. Rep. No. 541, 99TH Cong., 2nd Sess. 1986, 1986 U.S.C.C.A.N. 3555, 1986.

The Committee on the Judiciary further said that the Electronic Communications Privacy Act of 1986, represents a fair balance between the privacy expectations of American citizens and the legitimate needs of law enforcement agencies. S. Rep. No. 541, 99TH Cong., 2nd Sess. 1986, 1986 U.S.C.C.A.N. 3555, 1986.

In describing prohibitions, in Title II, against disclosure of the contents of stored communications, the Senate Report points out that § 2702(a) (part of Title II) "generally prohibits the provider of a wire or electronic communication service, to the public, from knowingly divulging the contents of any communication while in electronic storage by that service to any person other than the addressee or intended recipient." S.Rep. No. 99-541, 97th Cong. 2nd Sess. 37, (1986) U.S.C.C.A.N. 3555, 3591.

The Court erred when it found that inclusion of e-mail in the ECPA indicates that an expectation of privacy is not reasonable. Section 2701 of the ECPA pertains to unlawful access into a facility through which an electronic communication service is provided and protects against intentional access that exceeds an authorization to access that facility. Section 2702 prevents a person or entity providing an electronic communication service, to the public from knowingly divulging to any person or entity, the contents of a communication while in electronic storage by that service. Section 2703 specifically articulates required actions prior to Governmental inspections of stored communications. Under Section 2703, prior to disclosure by a system operator to a governmental agency, of e-mail stored for more than 180 days, notice to the subscriber must be given, if an administrative subpoena or a Court order is obtained by the Government. In the event that no notice is given to the subscriber, the agency must obtain a warrant.18 U.S.C 2703 (b) (A) and 18 U.S.C 2703 (b) (B). Additionally, Section 2703(2)(c)(1)(B)(iv) requires that a provider of an electronic communication service shall disclose a record or other information pertaining to a subscriber or a customer to a governmental entity only when the governmental entity has the consent of the subscriber or customer to such disclosure. Clearly, the framers of the ECPA acknowledged that a subscriber had an interest in stored communications, even though such communications were not in their physical possession by mandating notice or warrant requirements prior to a Governmental search. Sections 2704-2706 are not relevant in the present case. Section 2707 provides that any person who is harmed under the mandate of this chapter shall be allowed a civil action. Section 2708, Exclusivity of Remedies, states that "the remedies and sanctions described in this Chapter are the only judicial remedies and sanctions for non-constitutional violations of this Chapter". Section 2708 is addressed separately in F. below. Sections 2709, 2710 and 2711 are not relevant to the facts of this case.

Conclusively, the legislative history of the ECPA and the contents of Title II indicate a reasonable expectation of privacy in e-mail and the District Court incorrectly held otherwise.

F. Lack of exclusionary rule in the ECPA

The ECPA does not have an exclusionary rule requiring that electronic communications seized in violation of the Act be suppressed. 18 U.S.C. §§ 2515 and 2703. In arguing that the ECPA does not have an exclusionary rule as a remedy, the Government is in essence stating that a balancing of the equities; ones right to privacy in stored electronic communications versus the legitimate law enforcement needs to search, is not within judicial discretion. Section 2703 of the ECPA is ambiguous, and where a statute is ambiguous as to its plain meaning, the Court must look to the legislative intent. The legislative history of the ECPA does not expressly state that the intent of the ECPA is to limit judicial discretion in applying the exclusionary rule. Simply, Section 2708 does not include an exclusionary rule as a remedy for non-constitutional violations of the Act. Thus, without the authority to apply the exclusionary rule, the legislature has ripped away the power of the judiciary to deter over-zealous Government agents from enacting unreasonable searches and seizures, thereby whittling away at an individual’s Fourth Amendment rights of privacy.

In United States v. Reyes, 922 F. Supp. 818, 837 (S.D.N.Y. 1996), Reyes moved for suppressing the fruits of a search of three electronic paging devices. Reyes, 922 F. Supp. at 821. The third pager was seized in a hotel lost and found department pursuant to an allegedly defective search warrant. Id. The Court held that exclusion of evidence was not an available remedy for violation of the ECPA. Reyes, 922 F. Supp. at 837. However, because evidence from the pager was seized pursuant to a warrant, which was not supported by probable cause and because the memory of the pager was accessed in violation of the fourth amendment, the Court ordered suppression of evidence from this pager. Reyes, 922 F. Supp. 837, 838. In the present case, no warrant was obtained by the FBI to search the stored e-mail files nor did the FBI consider any minimal alternatives for precautionary measures of Matt Powell’s privacy rights. As in Reyes, Matt Powell’s stored e-mail was accessed in violation of the Fourth Amendment, and therefore the District Court should have ordered suppression of evidence seized from the e-mail files stored on COL’s system.

2. The District Court erred in denying Matt Powell’s motion to suppress evidence, on the grounds that even if there were a Fourth Amendment violation, the evidence may still be used and not excluded because the exclusionary rule’s remedy is separate from the question of Fourth Amendment violation and that the good faith exception to the warrant requirement applied in this case.

Standard of Review

The District Court’s finding that the good faith exception to the warrant requirement applied to the facts in the present case present this Court with purely legal issues for review. The error of the District Court, being solely one of law, is subject to de novo review. Pullman-Standard v. Swint, 456 U.S 273 (1982).

A. Exclusionary rule

In Mapp v. Ohio, 367 U.S. 643, 647, 649, 81 S.Ct. 1684, 1687 (1961), the Supreme Court referred to Weeks v. United States, 232 U.S. 383, 391--392, 34 S.Ct. 341, at page 344 (1914) where it stated, while specifically dealing with the use of the evidence unconstitutionally seized, that:

"If letters and private documents can thus be seized and held and used in evidence against a citizen accused of an offense, the protection of the Fourth Amendment declaring his right to be secure against such searches and seizures is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution."

The efforts of the courts and their officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the sacrifice of those great principles established by years of endeavor and suffering which have resulted in their embodiment in the fundamental law of the land.' Weeks at 393. Finally, the Court in that case clearly stated that the use of the seized evidence involved "a denial of the constitutional rights of the accused." Weeks at 398.

The Supreme Court has ever since required of federal law officers a strict adherence to that command which it has held to be a clear, specific, and constitutionally required--even if judicially implied--deterrent safeguard without insistence upon which the Fourth Amendment would have been reduced to "a form of words." Silverthorne Lumber Co. v. United States, , 251 U.S. 385, 392, 40 S.Ct. 182, 183 (1920). It meant, quite simply, that "conviction by means of unlawful seizures and enforced confessions … should find no sanction in the judgments of the courts …." Weeks, at 392 and that such evidence "shall not be used at all". Silverthorne Lumber Co, supra, 251 at page 392.

The Court in Olmstead v. United States, 277 U.S. 438, 462, 48 S.Ct. 564, 567 (1928) restated the Weeks rule:

"The striking outcome of the Weeks case and those which followed it was the sweeping declaration that the Fourth Amendment, although not referring to or limiting the use of evidence in court, really forbade its introduction if obtained by government officers through a violation of the amendment".

B. Good faith exception

In 1984, the Supreme Court, in U.S. v. Leon, 468 U.S. 897 (1984), established a limited exception to the generally applicable exclusionary rule for situations in which law enforcement agents seized evidence pursuant to a warrant that was factually invalid but which they reasonably believed to be valid (good faith exception). The good faith exception does not follow from police activity that relied on an invalid search warrant or statements given by a magistrate or a judge. To date, the Supreme Court has limited its "good faith" exception to the exclusionary rule to instances in which officers' searches and seizures have been objectively reasonable because of their reliance upon an apparently valid, external source of legal authority. The logic of permitting an exception to the exclusionary rule for invalid warrants which police officers believed to be valid does not extend to situations where the officers themselves made an incorrect determination (without seeking a warrant) that a search or seizure was legal. In United States v.Maxwell, 45 M.J. 406, 421 (1996), the Court held that because AOL had already determined which records were going to be released prior to receiving the warrant and treated the warrant merely as a green light to release the material that they had already compiled, the good faith exception did not apply. This was so because no warrant was relied upon to search the accounts. Id. In the present case, the FBI conducted a warrantless search on Matt Powell’s back up files of his stored e-mail. The officers relied on a copy of an e-mail presented to them by Kasie Gibbs. The Government search did not rely on a warrant or statements given by a Magistrate or a judge. The Government search commenced based on the Government’s independent determination that a search was necessary. Therefore, the good faith exception cannot not apply in the present case because the Government neither relied on a invalid search warrant that they believed to be valid or was their search objectively reasonable because of their reliance upon an apparently valid, external source of legal authority.

3. The District Court erred in denying Matt Powell’s motion to suppress evidence, on the grounds that even if Matt Powell had a reasonable expectation of privacy protected by the Fourth Amendment, consent by the system operator of Columbia On-Line (COL) placed Matt Powell’s case squarely in the established consent exception to the warrant requirement.

Standard of Review