Steven Warshak v. United States

OPINION

The government appeals the district court’s entry of a preliminary injunction, prohibiting it from seizing “the contents of any personal e-mail account maintained by an Internet Service Provider 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 on any complaint, motion, or other pleading seeking issuance of such an order.” D. Ct. Op. at 19. For the , reasons discussed below, we largely affirm the district court’s decision, requiring only that the preliminary injunction be slightly modified on remand.

I.

In March 2005, the United States was engaged in a criminal investigation of Plaintiff Steven Warshak and the company he owned, Berkeley Premium Nutraceuti-cals, Inc. The investigation pertained to allegations of mail and wire fraud, money laundering, and related federal offenses. On May 6, 2005, the government obtained an order from a United States Magistrate Judge in the Southern District of Ohio directing internet service provider (“ISP”) NuVox Communications to turn over to government agents information pertaining to Warshak’s e-mail account with NuVox. The information to be disclosed included (1) customer account information, such as application information, “account identifiers,” “Milling information to include bank account numbers,” contact information, and “[any] other information pertaining to the customer, including set up, synchronization, etc.”; (2) “[t]he contents of wire or electronic communications (not in electronic storage unless greater than 181 days old) that were placed or stored in directories or files owned or controlled” by Warshak; and (3) “[a]ll Log files and backup tapes.” Joint App’x at 49.

The order stated that it was issued under 18 U.S..C. § 2703, part of the Stored Communications Act (“SCA”), and that it was based on “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.” The order was issued under seal, and prohibited NuVox from “disclosing] the existence of the Application or this Order of the Court, or the existence of this investigation, to the listed customer or to any person unless and until authorized to do so by the Court.” The magistrate further ordered that “the notification by the government otherwise required under 18 U.S.C. § 2703(b)(1)(B) be delayed for ninety days.” On September 12, 2005, the government obtained a nearly identical order pertaining to Yahoo, another ISP, that sought the same types of information from Warshak’s Yahoo e-mail account and a Yahoo account identified with another individual named Ron Fricke.

On May 31, 2006, over a year after obtaining the NuVox order, the United States wrote to Warshak to notify him of *461 both orders and their requirements. 1 The magistrate had unsealed both orders the previous day. Based on this disclosure, Warshak filed suit on June 12, 2006, seeking declaratory and injunctive relief, and alleging that the compelled disclosure of his e-mails without a warrant violated the Fourth Amendment and the SCA. After filing the complaint, Warshak’s counsel sought the government’s assurance that it would not seek additional orders under section 2703(d) directed at his e-mails, at least for some discrete period of time during the pendency of his civil suit. The government declined to provide any such assurance. In response, Warshak moved for a temporary restraining order and/or a preliminary injunction prohibiting such future searches. The district court held a telephonic hearing on the motions, and eventually granted part of the equitable relief sought by Warshak.

In considering the factors for a preliminary injunction, the district court reasoned that e-mails held by an ISP were roughly analogous to sealed letters, in which the sender maintains an expectation of privacy. This privacy interest requires that law enforcement officials obtain a warrant, based on a showing of probable cause, as a prerequisite to a search of the e-mails. Because it viewed Warshak’s constitutional claim as meritorious, the district court deemed it unnecessary to examine his likelihood of success on the SCA claim. It also found that Warshak would suffer irreparable harm based on any additional constitutional violations, that such harm was imminent in light of the government’s past violations and its refusal to agree not to conduct similar seizures in the future, that Warshak lacked an adequate remedy at law to protect his Fourth Amendment rights, and that the public interest in preventing constitutional violations weighed in favor of the injunction. The district court also made clear that further factual development would be necessary for a final disposition, and that the injunction was tailored to protect Warshak from constitutional violations in the interim.

The district court rejected the full scope of Warshak’s request to enjoin the government from seizing any of his e-mails in the future. It stated that it was not “presently prepared to hold that 18 U.S.C. § 2703(d) facially violates the Fourth Amendment by simple virtue of the fact that it authorizes the seizure of personal emails from commercial ISPs without a warrant and on less than a showing of probable cause.” D. Ct. Op. at 16-17. The statute’s authorization of this procedure based only on the government’s ex parte representations struck the district court as more problematic, however, and it held that the “combination of a standard of proof less than probable cause and potentially broad ex parte authorization cannot stand.” Id. at 17. As a result, it deemed the constitutional flaws of the statute “facial in nature,” and agreed to preliminarily enjoin additional seizures of e-mails from an ISP account of any resident of the Southern District of Ohio without notice to the account holder and an opportunity for a hearing.

The gist of this remedy appears to be that when a hearing is required and the email account holder is given an opportunity in court to resist the disclosure of information, any resulting order is more like a subpoena than a search warrant. Therefore the standard necessary to obtain an *462 order under the SCA — that the government introduce “specific and articulable facts showing that there are reasonable grounds to believe that the contents” of the e-mail to be seized “are relevant and material to an ongoing criminal investigation” — is permissible as the functional equivalent of a subpoena given the subject’s ability to contest the order in court. Because this standard is lower than the probable cause standard necessary to obtain a search warrant, it is sufficient to justify a warrantless search only in instances where notice is provided to the account holder.

The government appeals from the district court’s ruling.

II.

The SCA, passed by Congress in 1986, is codified at 18 U.S.C. §§ 2701 to 2712, and contains a number of provisions pertaining to the accessibility of “stored wire and electronic communications and transactional records.” Portions of the SCA that are not directly at stake here prohibit unauthorized access of electronic communications (§ 2701) and prohibit a service provider from divulging the contents of electronic communications that it is storing for a customer with certain exceptions pertaining to law enforcement needs (§ 2702). At issue in this case is § 2703, which provides procedures through which a governmental entity can access both user records and other subscriber information, and the content of electronic messages.

Subsection (a) requires the use of a warrant to access messages that have been in storage for 180 days or less. Subsection (b) provides that to obtain messages that have been stored for over 180 days, the government generally must either (1) obtain a search warrant, (2) use an administrative subpoena, or (3) obtain a court order. The latter two require prior notice to the subscriber, allowing the subscriber an opportunity for judicial review before the disclosure:

(b) Contents of wire or electronic communications in a remote computing service.

(1) A governmental entity may require a provider of remote computing service to disclose the contents of any wire or electronic communication to which this paragraph is made applicable by paragraph (2) of this subsection—

(A) without required notice to the subscriber or customer, if the governmental entity obtains a warrant issued using the procedures described in the Federal Rules of Criminal Procedure by a court with jurisdiction over the offense under investigation or equivalent State warrant; or

(B) with prior notice from the governmental entity to the subscriber or customer if the governmental entity—

(i) uses an administrative subpoena authorized by a Federal or State statute or a Federal or State grand jury or trial subpoena; or

(ii) obtains a court order for such disclosure under subsection (d) of this section; except that delayed notice may be given pursuant to section 2705 of this title.

18 U.S.C. § 2703(b) (emphasis added). The final subsection cited here contains the exception to the requirement that the government must either provide notice to the subscriber if seeking either an SCA order or an administrative subpoena, or must, in the absence of notice, obtain a search warrant. This exception, which allows for delayed notice under section 2705, is the root of the present controversy.

Subsection (d), which is referenced in subsection (b), sets forth the procedure *463 and requirements for obtaining a court order (as opposed to a warrant):

A court order for disclosure under subsection (b) or (c) may be issued by any court that is a court of competent jurisdiction and shall issue only if the governmental entity offers specific and ar-ticulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation. In the case of a State governmental authority, such a court order shall not issue if prohibited by the law of such State. A court issuing an order pursuant to this section, on a motion made promptly by the service provider, may quash or modify such order, if the information or records requested are unusually voluminous in nature or compliance with such order otherwise would cause an undue burden on such provider.

18 U.S.C. § 2703(d). The parties agree that the standard of proof for a court order — “specific and articulable facts showing that there are reasonable grounds to believe that the contents ... or records ... are relevant and material to an ongoing criminal investigation” — -falls short of probable cause.

Section 2705, which provides for delayed notice of a 2703(d) court order, states in relevant part:

(a) Delay of notification.

(1) A governmental entity acting under section 2703(b) of this title may—

(A)where a court order is sought, include in the application a request, which the court shall grant, for an order delaying the notification required under section 2703(b) of this title for a period not to exceed ninety days, if the court determines that there is reason to believe that notification of the existence of the court order may have an adverse result described in paragraph (2) of this subsection; or

(B)where an administrative subpoena authorized by a Federal or State statute or a Federal or State grand jury subpoena is obtained, delay the notification required under section 2703(b) of this title for. a period not to exceed ninety days upon the execution of a written certification of a supervisory official that there is reason to believe that notification of the existence of the subpoena may have an adverse result described in paragraph (2) of this subsection.

(2) An adverse result for the purposes of paragraph (1) of this subsection is—

(A) endangering the life or physical safety of an individual;

(B) flight from prosecution;

(C) destruction of or tampering with evidence;

(D) intimidation of potential witnesses; or

(E) otherwise seriously jeopardizing an investigation or unduly delaying a trial.

‡ ‡ $ *K *

(4) Extensions of the delay of notification provided in section 2703 of up to ninety days each may be granted by the court upon application, or by certification by a governmental entity, but only in accordance with subsection (b) of this section.

(5) Upon expiration of the period of delay of notification under paragraph (1) or (4) of this subsection, the governmental entity shall serve upon, or deliver by registered or first-class mail to, the customer or subscriber a copy of the process or. request together with notice that—

*464 (A) states with reasonable specificity the nature of the law enforcement inquiry; and

(B) informs such customer or subscriber—

(i) that information maintained for such customer or subscriber by the service provider named in such process or request was supplied to or requested by that governmental authority and the date on which the supplying or request took place;

(ii) that notification of such customer or subscriber was delayed;

(iii) what governmental entity or court made the certification or determination pursuant to which that delay was made; and

(iv) which provision of this chapter allowed such delay.

Subsection (b) of section 2705 similarly allows the government to obtain a court order prohibiting the ISP from notifying the account holder “of the existence of the warrant, subpoena, or court order,” when the government is not required to provide him notice. These provisions of sections 2703 and 2705 largely govern the seizures of Warshak’s e-mails. 2

The injunctive relief imposed by the district court has a specific narrow application to portions of the SCA. It would still allow seizures of e-mails pursuant to a warrant or with prior notice to a subscriber. The portions that it enjoins are the exception provided in section 2703(b)(l)(B)(ii), which allows for a court order with delayed notice to the account holder, and the procedures provided in section 2705, which are incorporated by reference into section 2703(b)(l)(B)(ii).

III.

The government focuses on four issues in challenging the preliminary injunction. First, it argues that Warshak’s claims are not justiciable in the first instance, based on the doctrines of standing and ripeness. Second, it contends that the Fourth Amendment’s probable cause standard is inapplicable in the context of SCA seizures, which it likens to compelled disclosures. This issue primarily covers Wars-hak’s likelihood of success on the merits, the first factor in the preliminary injunction analysis. Next, it argues that Wars-hak’s claims are not the proper subject of a facial challenge to the provisions of the SCA in question. Finally, it challenges *465 the district court’s balancing of the remaining preliminary injunction factors.

We review a district court’s decision regarding a preliminary injunction for an abuse of discretion. Overstreet v. Lexington-Fayette Urban County Gov’t, 305 F.3d 566, 573 (6th Cir.2002). Four factors must be considered and balanced by the district court in making its determination: “(1) whether the plaintiff has established a substantial likelihood or probability of success on the merits; (2) whether there is a threat of irreparable harm to the plaintiff; (3) whether issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by granting injunctive relief.” Nightclubs, Inc. v. City of Paducah, 202 F.3d 884, 888 (6th Cir.2000) (overruled on other grounds, City of Littleton v. Z.J. Gifts D-4, L.L.C., 541 U.S. 774, 784, 124 S.Ct. 2219, 159 L.Ed.2d 84 (2004)). “ ‘The district court’s determination will be disturbed only if the district court relied upon clearly erroneous findings of fact, improperly applied the governing law, or used an erroneous legal standard.’ ” Id. (quoting Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir.1998)).

We review de novo the legal questions of standing and ripeness. See Prime Media v. City of Brentwood, 485 F.3d 343, 348 (6th Cir.2006).

A. Standing and Ripeness

1. Standing

The government first asserts that the district court lacked subject matter jurisdiction to entertain Warshak’s claims, both because Warshak lacked standing to challenge future searches under the SCA, and because his claims were not ripe for review. To establish standing, a plaintiff must allege “(1) an injury that is (2) ‘fairly traceable to the defendant’s allegedly unlawful conduct’ and that is (3) ‘likely to be redressed by the requested relief.’ ” Id. at 349 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). Where a plaintiff seeks injunctive relief, a natural outgrowth of these factors requires a showing of ongoing injury or an imminent threat of future injury. See O’Shea v. Littleton, 414 U.S. 488, 495-96, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974) (“Past exposure to illegal conduct does not in itself show a present case or controversy regarding in-junctive relief ... if unaccompanied by any continuing, present adverse effects.”); but see Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) (“Past wrongs [are] evidence bearing on ‘whether there is a real and immediate threat of repeated injury.’ ” (quoting O’Shea, 414 U.S. at 495-96, 94 S.Ct. 669)). Although past harm to a plaintiff seeking injunctive relief can serve as relevant evidence, he must also show a threat that is “sufficiently real and immediate” to establish the “prospect of future injury” as part of the standing requirement. Lyons, 461 U.S. at 102-103, 103 S.Ct. 1660 (citing O’Shea, 414 U.S. at 496-97, 94 S.Ct. 669). The district court found that Warshak showed a sufficient threat of imminent harm, in light of the past seizures of his emails and the fact that the government “refused to pledge not to obtain or enforce future 2703(d) orders of this kind against other e-mail accounts of Warshak’s.” D. Ct. Op. at 12.

The government relies primarily upon Lyons to support its contention that Wars-hak’s claims are largely hypothetical, and do not support a showing of imminent harm. In Lyons, the plaintiff sought in-junctive relief against the use of choke-holds by Los Angeles police after he had been put in a chokehold himself. 461 U.S. at 105, 103 S.Ct. 1660. The Supreme *466 Court determined that the plaintiff had failed to demonstrate any future harm upon which he would have standing to seek injunctive relief, because there was no imminent threat that he would be subjected to a chokehold again. Id. at 107, 103 S.Ct. 1660. Among other things, the plaintiff could not show that the city had a policy authorizing the use of chokeholds or that all Los Angeles police always used choke-holds, and the Court was unwilling to assume that the plaintiff would voluntarily break the law again and be involved in a confrontation with police. Id. at 111, 103 S.Ct. 1660 (“The speculative nature of Lyons’ claim of future injury requires a finding that this prerequisite of equitable relief has not been fulfilled.”).

Warshak’s claims are distinguishable from those in Lyons for several reasons. First, unlike in Lyons, the government clearly has a policy of seizing e-mails — the very practice that Warshak alleges is unconstitutional. There is no dispute about the existence of this policy: not only have Warshak’s e-mails been seized twice pursuant to the policy, and not only has the government refused to abstain from future seizures, but a statute explicitly authorizes the challenged government action. The presence of this policy and its applicability to Warshak are likely sufficient on their own to give Warshak standing to seek equitable relief. See Lyons, 461 U.S. at 105-06, 103 S.Ct. 1660 (“In order to establish an actual controversy in this case, Lyons would have had not only to allege that he would have another encounter with the police but also to make the incredible assertion either (1) that all police officers in Los Angeles always choke any citizen with whom they happen to have an encounter, whether for the purpose of arrest, issuing a citation, or for questioning, or (2) that the City ordered or authorized police officers to act in such manner.” (emphasis added)); see also Baur v. Vene-man, 352 F.3d 625, 637 (2d Cir.2003) (citing “alleged risk of harm arising] from an established government policy” as a “critical factor that weigh[s] in favor of concluding that standing exists.... ”); 31 Foster Children v. Bush, 329 F.3d 1255, 1266 (11th Cir.2003) (“[Fjuture injury that depends on either the random or unauthorized acts of a third party is too speculative to satisfy standing requirements. However, when the threatened acts that will cause injury are authorized or part of a policy, it is significantly more likely that the injury will occur again.”).

Further, although Warshak, like Lyons, finds himself in a confrontation with the government due to allegations of illegal conduct on his part, the nature of the confrontation is very different. Warshak has been subject to a lengthy, ongoing investigation, and even if it is prompted by suspicion of illegal conduct on his part, the ongoing nature of the investigation is clearly distinguishable from the brief encounter at issue in Lyons. Warshak’s fear of the challenged government conduct need not be premised on a showing that he will resist arrest, attempt to escape from police custody, or otherwise engage in a physical confrontation with police, as the Lyons plaintiff would have had to show. Instead, the challenged conduct here involves an investigation during which the government might seek to seize additional e-mails at any time. Although Warshak has now been indicted, and the investigation is at a different and less secretive stage, the government would certainly want to search more of his e-mails if it had reason to believe that they might be incriminating. The brief and somewhat random nature of the confrontation in Lyons distinguishes it from the ongoing, targeted confrontation here. The government points out that there is no way to determine with any degree of certainty that it *467 will seek such seizures in the future, but as Warshak argues, “[o]ne does not have to await consummation of threatened injury to obtain preventive relief.” Blum v. Yaretsky, 457 U.S. 991, 1000, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982).

In light of the past e-mail seizures, the ongoing nature of the investigation against Warshak, and the government policy of seizing e-mails without a warrant or notice to the account holder, we agree with the district court that Warshak has shown a sufficiently imminent threat of future injury to meet the injury in fact element of standing under Lyons.

As Warshak has shown an imminent threat of injury, this threat would clearly be redressed by the injunctive relief issued by the district court, because the government would be prohibited from repeating its allegedly unconstitutional conduct in the future. Although the government argues that the redressability requirement has not been met, its argument on this issue is subsumed by the imminent threat of injury inquiry, as it asserts that there is no redressability because there is no threatened future injury. The redress-ability requirement does not, therefore, present an independent basis for us to find a lack of standing.

2. Ripeness

The government also argues that Warshak’s claims are not ripe, as they are too hypothetical without a pending order directed at his e-mails. The ripeness inquiry focuses on three factors: (1) the “likelihood that the harm alleged by [the] plaintiffs will ever come to pass”; (2) “whether the factual record is sufficiently developed to produce a fair adjudication of the merits of the parties’ respective claims”; and (3) “the hardship to the parties if judicial relief is denied at [this] stage in the proceedings.” Adult Video Ass’n v. United States Dept. of Justice, 71 F.3d 563, 568 (6th Cir.1995) (internal citations omitted). As this Court has explained, “[t]he ripeness doctrine generally applies in cases ... in which a party seeks a declaratory judgment based on pre-en-forcement review of a statute or regulation .... ” Kardules v. City of Columbus, 95 F.3d 1335, 1343 (6th Cir.1996).

The government contends that because Warshak challenges future e-mail seizures that he cannot prove will occur again, his claims are too hypothetical to be ripe. Warshak’s claim is distinguishable from the typical ripeness case, however, because he has suffered past alleged injuries from the exact conduct that he seeks to have enjoined, and because the ongoing nature of the investigation against him raises the likelihood of these harms occurring again. To a large extent, the first ripeness factor — the likelihood that alleged harm will ever come to pass — is quite similar to the standing requirement of an imminent threatened injury. Adult Video Ass’n., 71 F.3d at 567 (“[T]he ripeness doctrine not only depends on the finding of a case and controversy and hence jurisdiction under Article III, but it also requires that the court exercise its discretion to determine if judicial resolution would be desirable under all of the circumstances.”) (quoting Brown v. Ferro Corp., 763 F.2d 798, 801 (6th Cir.1985)). The past alleged injuries and our finding of a continued threat of injury would suggest that Warshak meets the first ripeness prong.

If the government’s practice was to notify Warshak prior to seeking seizure of his e-mails, the second and third ripeness factors might support a determination that his claims are not ripe. In the context of administrative law, for example, a legal challenge is often unripe before a final agency decision, in part because a better developed legal challenge can be brought *468 at that time. See, e.g., Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726, 734, 118 S.Ct. 1665, 140 L.Ed.2d 921 (1998) (“The Sierra Club thus will have ample opportunity later to bring its legal challenge at a time when harm is more imminent and more certain.”). Here, however, the government’s ex parte approach to obtaining Warshak’s e-mails precludes the possibility of judicial review at a subsequent and more appropriate time. Thus, as Warshak points out, he will likely suffer the hardship of continuing to have his Fourth Amendment rights violated with limited legal recourse if his current claims are deemed unripe. Further, with respect to the second factor, the past seizures of his e-mails present an adequate factual basis on which to assess the government’s conduct. Although future seizures, and not the past incidents, are those upon which Warshak’s challenge is focused, the likely similarity renders them a sufficient backdrop for judicial review.

The government’s elusive practices have themselves limited Warshak’s abilities to seek redress for future constitutional violations in any other manner. Further, the past alleged Constitutional violations have demonstrated that the challenged conduct is at least not hypothetical. The government has not identified a single case where either standing or ripeness were found lacking where the plaintiff alleged multiple past constitutional violations, a statute explicitly condoned similar alleged violations in the near future, the threat of such violations continued in light of pending charges against the subject of the violation, and the government insisted on its prerogative to continue the challenged conduct. Nor do we believe that any reading of the precedents of this Court or the Supreme Court can support such a result. For these reasons, we affirm the district court’s determination that Warshak’s claims are justiciable, and proceed to consider them on the merits.

B. Likelihood of Success on the Merits: Probable Cause versus Reasonableness and Fourth Amendment Implications of SCA Orders

1. Probable Cause versus Reasonableness

With respect to the merits of the preliminary injunction, the government argues that court orders issued under section 2703 are not searches but rather compelled disclosures, akin to subpoenas. As a result, according to the government, the more stringent showing of probable cause, a prerequisite to the issuance of a warrant under the Fourth Amendment, is inapplicable, and an order under section 2703 need only be supported by a showing of “reasonable relevance.”

The government is correct that “whereas the Fourth Amendment mandates a showing of probable cause for the issuance of search warrants, subpoenas are analyzed only under the Fourth Amendment’s general reasonableness standard.” Doe v. United States, 253 F.3d 256, 263-64 (6th Cir.2001). As this Court has explained, “[o]ne primary reason for this distinction is that, unlike ‘the immediacy and intrusiveness of a search and seizure conducted pursuant to a warranty’ the reasonableness of an administrative subpoena’s command can be contested in federal court before being enforced.” Id. at 264 (quoting In Re Subpoena Duces Tecum, 228 F.3d 341, 347-49 (4th Cir.2000)); see also Donovan v. Lone Steer, 464 U.S. 408, 415, 104 S.Ct. 769, 78 L.Ed.2d 567 (1984). The government is also correct that this principle extends to subpoenas to third-parties — that is, entities other than the subject of the investigation, like NuVox and Yahoo in this case. See United States *469 v. Phibbs, 999 F.2d 1053, 1077 (6th Cir.1993).

Phibbs makes explicit, however, a necessary Fourth Amendment caveat to the rule regarding third-party subpoenas: the party challenging the subpoena has “standing to dispute [its] issuance on Fourth Amendment grounds” if he can “demonstrate that he had a legitimate expectation of privacy attaching to the records obtained.” Id.; see also United States v. Miller, 425 U.S. 435, 444, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976) (“Since no Fourth Amendment interests of the depositor are implicated here, this case is governed by the general rule that the issuance of a subpoena to a third party to obtain the records of that party does not violate the rights of a defendant.” (emphasis added)). This language reflects the rule that where the party challenging the disclosure has voluntarily disclosed his records to a third party, he maintains no expectation of privacy in the disclosure visa-vis that individual, and assumes the risk of that person disclosing (or being compelled to disclose) the shared information to the authorities. See, e.g., United States v. Jacobsen, 466 U.S. 109, 117, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984) (“[W]hen an individual reveals private information to another, he assumes the risk that his confidant will reveal that information to the authorities, and if that occurs the Fourth Amendment does not prohibit governmental use of that information.”).

Combining this disclosure to a third party with the government’s ability to subpoena the third party alleviates any need for the third-party subpoena to meet the probable cause requirement, if the challenger has not maintained an expectation of privacy with respect to the individual being compelled to make the disclosure. For example, in Phibbs, the documents in question were credit card and phone records that were “readily accessible to employees during the normal course of business.” 999 F.2d at 1078. A similar rationale was employed by the Supreme Court in Miller. 425 U.S. at 442, 96 S.Ct. 1619 (“The checks are not confidential communications but negotiable instruments to be used in commercial transactions. All of the documents obtained, including financial statements and deposit slips, contain only information voluntarily conveyed to the banks and exposed to their employees in the ordinary course of business.”). See also SEC v. Jerry T. O’Brien, Inc., 467 U.S. 735, 743, 104 S.Ct. 2720, 81 L.Ed.2d 615 (1984) (“When a person communicates information to a third party even on the understanding that the communication is confidential, he cannot object if the third party conveys that information or records thereof to law enforcement authorities.”). The government’s compelled disclosure argument, while relevant, therefore begs the critical question of whether an e-mail user maintains a reasonable expectation of privacy in his e-mails vis-a-vis the party who is subject to compelled disclosure — in this instance, the ISPs. If he does not, as in