Author: LegalEase Solutions
QUESTION PRESENTED
Whether Michigan criminal procedure or criminal case law allows a motion to suppress based on the concept of violation of privacy, where a private Facebook message is the subject of the motion?
(a)Whether Michigan courts have allowed other electronic messages to be suppressed?
(b) What privacy, if any, have the courts recognized in similar cases?
(c) What factors weigh in favor of suppression and which do not?
SHORT ANSWER
In a criminal case, suppression of electronic messages on the basis of the concept of violation of privacy is not considered an appropriate remedy for illegal interception of an electronic communication. In contrast, the remedies are criminal penalties and in some cases being subjected to a civil suit by the federal government. This is because, there are no independent statutory remedy of suppression for interceptions of electronic communications.
RESEARCH FINDINGS
(a)Whether Michigan courts have allowed other electronic messages to be suppressed
Courts from various jurisdictions have similar opinions with regard to suppression of electronic communications. It is true that Title III allows any aggrieved person to move to suppress the contents of any illegally intercepted wire or oral communication. But the remedies for the illegal interception of an electronic communication, in contrast, are criminal penalties and therefore, the only way such evidence can be suppressed is through the judicially created exclusionary remedy for constitutional violations.
“The federal statute provides that an ‘aggrieved person’ in any trial, hearing or proceeding in any state or federal court may move to suppress the contents of an intercepted communication ‘or evidence derived’ therefrom on the ground that the communication was unlawfully intercepted. The term aggrieved person is defined as ‘a party to any intercepted’ communication.” People v Warner, 401 Mich 186, 227; 258 NW2d 385, 404 (1977).
In particular, “Title III allows any aggrieved person to move to suppress the contents of any illegally intercepted wire or oral communication. The remedies for the illegal interception of an electronic communication, in contrast, are criminal penalties and, in some cases, being subjected to a civil suit by the federal government.” United States v Forest, 355 F3d 942, 949 (CA 6 2004) cert gtd, judgment vacated sub nom. Garner v United States, 543 US 1100; 125 S Ct 1050; 160 L Ed 2d 1001 (2005) (citing 18 U.S.C. § 2518(10)(a);18 U.S.C. § 2511).
Again, “Title III also expressly states that “the remedies and sanctions described in this chapter with respect to the interception of electronic communications are the only judicial remedies and sanctions for nonconstitutional violations of this chapter involving such communications.” Id. “Suppression, therefore, is not a permissible statutory remedy under Title III for the illegal interception of an electronic communication. Title III does not provide an independent statutory remedy of suppression for interceptions of electronic communications.” Id.
Similarly, the Supreme Court of Pennsylvania observed that, the “Fourth Amendment does not contain an express mandate that evidence seized as a result of an illegal search must be suppressed, the exclusionary rule operates as a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved.” Com v Dougalewicz, 113 A3d 817, 824 (Pa Super Ct 2015).
Also, in California, the court found that, “[w]hen Congress amended Title III to include electronic communications it did not amend the suppression statutes, 18 U.S.C. sections 2515 and 2518(10)(a) which continue to apply only to wire or oral communication. As a result there is no statutory suppression remedy for a violation of Title III procedures in intercepting electronic communications.” People v Jackson, 129 Cal App 4th 129, 157; 28 Cal Rptr 3d 136, 157 (2005), as mod on denial of reh (June 7, 2005). “The only way such evidence can be suppressed is through the judicially created exclusionary remedy for constitutional violations.” Id. Accordingly, the court opined that, “[t]he analysis of a suppression motion focuses on violations of the statutory procedures and not on constitutional violations, because while it is possible to violate a core principle of the statute without violating the Fourth Amendment it would not seem possible to violate the Fourth Amendment without also violating a core statutory principle.” Id. at 151.
Hence, suppression is not a permissible statutory remedy under Title III for the illegal interception of an electronic communication because, there is no independent statutory remedy of suppression for interceptions of electronic communications.
(b)What privacy, if any, have the courts recognized in similar cases
Generally, the federal and Michigan statutes have prohibited the intentional interception of electronic communications thereby protecting private conversations against eavesdropping.
“18 USC 2511(1)(a) generally prohibits the intentional interception of any wire, oral, or electronic communication. 18 USC 2510(4) defines intercept as the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device.” Vollmar v Laura, No. 262658, 2006 WL 1008995, at *2 (Mich Ct App April 18, 2006). “Although MCL 750.539c uses the term eavesdrop, which is not defined as the interception of communications, Michigan’s statute, like the federal statute, ‘protects private conversations against eavesdropping accomplished through the wilful use of any device.’” Id. (quoting People v. Stone, 463 Mich. 558, 564-565, 621 N.W.2d 702 (2001)).
“Eavesdrop” or “eavesdropping” means to overhear, record, amplify or transmit any part of the private discourse of others without the permission of all persons engaged in the discourse. Neither this definition or any other provision of this act shall modify or affect any law or regulation concerning interception, divulgence or recording of messages transmitted by communications common carriers. Id. at *1 (citing MCL 750.539a(2)).
Michigan’s eavesdropping statute, MCL 750.539c, prohibits a person from willfully using any device to eavesdrop on the private conversations of others and provides:
Any person who is present or who is not present during a private conversation and who willfully uses any device to eavesdrop upon the conversation without the consent of all parties thereto, or who knowingly aids, employs or procures another person to do the same in violation of this section, is guilty of a felony punishable by imprisonment in a state prison for not more than 2 years or by a fine of not more than $2,000.00 or both.
Id.
“The established principle is that suppression of the product of a Fourth Amendment violation can be successfully urged only by those whose rights were violated by the search itself, not by those who are aggrieved solely by the introduction of damaging evidence.” People v Warner, 401 Mich 186, 203; 258 NW2d 385, 392 (1977). “Co-conspirators and co-defendants have been accorded no special standing. The right to suppression is personal to the one whose right to privacy was violated.” Id.
Hence, 18 U.S.C. s 2518(10)(a) provides:
(10)(a) Any aggrieved person in any trial, hearing, or proceeding in or before any court * * * may move to suppress the contents of any intercepted wire or oral communication, or evidence derived therefrom on the grounds that
(i) the communication was unlawfully intercepted * * *.
People v Warner, 401 Mich 186, 205-06; 258 NW2d 385, 393 (1977).
“The Fourth Amendment of the United States Constitution provides that searches conducted without a warrant, subject to certain well-recognized exceptions, are per se unreasonable. However, not all governmental intrusions involve searches within the meaning of the Fourth Amendment. Before invoking the general rule, it must first be determined whether a search has occurred.” People v Fisher, 166 Mich App 699, 703-04; 420 NW2d 858, 860-61 (1988). “The test for determining whether governmental activity infringes upon a protected interest is whether the defendant exhibited an actual (subjective) expectation of privacy and whether the expectation is one that society will recognize as reasonable.” Id. “In making the privacy determination, a court is to scrutinize the totality of circumstances surrounding the alleged intrusion. The reasonable expectation of privacy test has been adopted for defining the scope of Const. 1963, art 1, § 11, which similarly prohibits unreasonable searches by the government.” Id.
Hence, court while determining privacy issues looks into the kind of alleged intrusion and shall adopt a test for reasonable expectation of privacy for defining the scope of protection and to check whether such intrusions fall within the purview of the Fourth Amendment.
(c)What factors weigh in favor of suppression and which do not
Courts had varied opinions in terms of privacy of electronic communications. Some courts were of the opinion that, a search of an individual’s personal e-mail account would be just as intrusive as a wiretap on his home phone line and therefore, that email requires strong protection under the Fourth Amendment, otherwise the Fourth Amendment would prove an ineffective guardian of private communication. In contrast, some courts were of the view that, a reasonably intelligent person would be savvy enough to be aware of the fact that messages sent through internet are received in a recorded format by their very nature and can be downloaded or printed by the party receiving the message and therefore, cannot be afforded a reasonable expectation of privacy once that message is received.
“[A] search of an individual’s personal e-mail account would be just as intrusive as a wiretap on his home phone line; holding that the privacy interests in mail and email are identical.” United States v Warshak, 631 F3d 266, 286 (CA 6 2010) (citing 18 U.S.C. §§ 2701). (see also United States v. Forrester, 512 F.3d 500, 511 (9th Cir.2008)). “Over the last decade, email has become “so pervasive that some persons may consider it to be an essential means or necessary instrument for self-expression, even self-identification. It follows that email requires strong protection under the Fourth Amendment; otherwise, the Fourth Amendment would prove an ineffective guardian of private communication, an essential purpose it has long been recognized to serve.” Id. at 266.
Accordingly, the court held that “a subscriber enjoys a reasonable expectation of privacy in the contents of emails that are stored with, or sent or received through, a commercial ISP[Internet Service Provider]. [S]uggesting that the contents of email messages may deserve Fourth Amendment protection.” Id. at 288. “The government may not compel a commercial ISP to turn over the contents of a subscriber’s emails without first obtaining a warrant based on probable cause. Moreover, to the extent that the SCA purports to permit the government to obtain such emails warrantlessly, the SCA is unconstitutional.” Id. at 288.
One can certainly argue that information posted by individuals about themselves on online social network sites is not undisclosed-indeed, it may be voluntarily disclosed.72 Courts have already expressed a disinclination to find rights to privacy in online information. As one court stated, “the concept of [I]nternet privacy is a fallacy upon which no one should rely.”73 Internet postings are not considered private since they are often available to the general public and the right to privacy protects only that which people seek to preserve as private.74 At present, most courts consider the right to *13 privacy as binary-what is not kept secret is not considered private.75 As individuals live more of their lives through online applications, they leave a trail of individual bits of data that can be accumulated into a near-complete picture of who they are, what they do, where they go, and with whom they associate.
Robert Sprague, INVASION OF THE SOCIAL NETWORKS: BLURRING THE LINE BETWEEN PERSONAL LIFE AND THE EMPLOYMENT RELATIONSHIP, 50 U Louisville L Rev 1, 12-13 (2011)
Unlawful access to stored communications
(a) Offense.–Except as provided in subsection (c) of this section whoever–
(1) intentionally accesses without authorization a facility through which an electronic communication service is provided; or
(2) intentionally exceeds an authorization to access that facility;
and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system shall be punished as provided in subsection (b) of this section.
18 USCA § 2701
Moreover,
A social networking Web site user may have an expectation of privacy in the contents of Facebook communications, it has been held.
88 A.L.R.6th 319 (Originally published in 2013).
Also, numerous courts have similarly concluded that individuals maintain a reasonable expectation of privacy with respect to their private email accounts and that such accounts are entitled to the same Fourth Amendment protections as conventional letters.
For instance, “the Court agrees that one cannot distinguish a password-protected private Facebook message from other forms of private electronic correspondence.” RS ex rel SS v Minnewaska Area Sch Dist No 2149, 894 F Supp 2d 1128, 1142 (D Minn 2012). Further, “[o]ne court recently concluded that private Facebook messages are, like email, “inherently private” because such messages “are not readily accessible to the general public.” Crispin v. Christian Audigier, Inc., 717 F.Supp.2d 965, 991 (C.D.Cal.2010).
Third Party Intrusion
“The intrusion of privacy incurred where a participant transmits a conversation to a third party is equally present as where a participant records the conversation. Thus, defendant is entitled to the same protection from unreasonable searches and seizures.” People v Artuso, 100 Mich App 396, 399; 298 NW2d 746, 748 (1980). “[P]rivate conversation” emanates from our eavesdropping statutes, which, by their own terms, do not apply to law enforcement personnel acting within their lawful authority. MCL 750.539g(a); MSA 28.807(7)(a). Because of these differences, we do not rely on Fourth Amendment jurisprudence.” People v Stone, 463 Mich 558, 564; 621 NW2d 702, 705 (2001).
U.S. Const., Am. IV provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
People v Collins, 438 Mich 8, 25; 475 NW2d 684, 691 (1991).
Intrusion by Governmental Entity or Authority
“The Stored Communications Act (“SCA”), 18 U.S.C. §§ 2701 et seq., ‘permits a ‘governmental entity’ to compel a service provider to disclose the contents of [electronic] communications in certain circumstances.’” United States v Warshak, 631 F3d 266, 282 (CA 6 2010) (citing 18 U.S.C. §§ 2701). “Electronic communication services permit ‘users … to send or receive wire or electronic communications,’ a definition that covers basic e-mail services.” Id.at 283. (citing [18 U.S.C.] § 2510(15) ). “[E]lectronic storage” is “any temporary, intermediate storage of a wire or electronic communication … and … any storage of such communication by an electronic communication service *283 for purposes of backup protection of such communication.” Id.at 283 (citing 18 U.S.C. § 2510(17)). “Given the fundamental similarities between email and traditional forms of communication, it would defy common sense to afford emails lesser Fourth Amendment protection.” Id. at 286.
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.” Warshak v United States, 490 F3d 455, 469 (CA 6 2007), reh en banc gtd, opinion vacated (Oct. 9, 2007). “If he does not . . . then the government must meet only the reasonableness standard applicable to compelled disclosures to obtain the material. If, on the other hand, the e-mail user does maintain a reasonable expectation of privacy in the content of the e-mails . . . then the Fourth Amendment’s probable cause standard controls the e-mail seizure.” Id.
(a) Contents of wire or electronic communications in electronic storage.–A governmental entity may require the disclosure by a provider of electronic communication service of the contents of a wire or electronic communication, that is in electronic storage in an electronic communications system for one hundred and eighty days or less, only pursuant to a warrant issued using the procedures described in the Federal Rules of Criminal Procedure (or, in the case of a State court, issued using State warrant procedures) by a court of competent jurisdiction. A governmental entity may require the disclosure by a provider of electronic communications services of the contents of a wire or electronic communication that has been in electronic storage in an electronic communications system for more than one hundred and eighty days by the means available under subsection (b) of this section.
18 USCA § 2703
“Section 2703(c)(1)(C) provides in pertinent part that “[a] provider of electronic communication service” shall disclose private customer information to a government entity only in response to “an administrative subpoena authorized by a Federal or State statute or a Federal or State grand jury or trial subpoena” served by the government entity.” FTC v Netscape Communications Corp, 196 FRD 559, 560 (ND Cal 2000) (citing 18 U.S.C. § 2703(c)(1)(C)).
The “court held that the Sixth Amendment right to counsel does not apply to a consent to search, because a search does not generate evidence, but merely reveals evidence already in existence and certain to become available to the government in due course.” People v Marsack, 231 Mich App 364, 377; 586 NW2d 234, 240 (1998). “A request for a consent to search is not a trial-like confrontation; instead, it is more like a request for other types of physical evidence, such as handwriting exemplars and blood samples.” Id.
The American Law Report provides for what does not lie under expectation of privacy in case of electronic communications.
An expectation of privacy has generally not been found to exist with regard to subscriber information provided by service users to their Internet service providers, records on individuals’ Internet usage, or as to communications made on Internet websites. Nor, with limited exception, have courts generally found a reasonable expectation of privacy to exist in e–mail or electronic chat–room communications.
92 A.L.R.5th 15 (Originally published in 2001)
However, the Supreme Court of Pennsylvania, has described through a holding whether e-mail or chat-room conversations has reasonable expectation of privacy.
“Any reasonably intelligent person, savvy enough to be using the Internet, however, would be aware of the fact that messages are received in a recorded format, by their very nature, and can be downloaded or printed by the party receiving the message.” Com v Proetto, 771 A2d 823, 829 (Pa Super Ct 2001) (citing 18 Pa.C.S.A. § 5704(4). “By the very act of sending a communication over the Internet, the party expressly consents to the recording of the message.” Id.
Moreover, “[s]ending an e-mail or chat-room communication is analogous to leaving a message on an answering machine. The sender knows that by the nature of sending the communication a record of the communication, including the substance of the communication, is made and can be downloaded, printed, saved, or, in some cases, if not deleted by the receiver, will remain on the receiver’s system.” Id. at 830. “Accordingly, by the act of forwarding an e-mail or communication via the Internet, the sender expressly consents by conduct to the recording of the message.” Id.at 831
Furthermore, “[e]-mail transmissions are not unlike other forms of modern communication…. For example, if a sender of first-class mail seals an envelope and addresses it to another person, the sender can reasonably expect the contents to remain private and free from the eyes of the police absent a search warrant founded upon probable cause.” Id. at 831. “However, once the letter is received and opened, the destiny of the letter then lies in the control of the recipient of the letter, not the sender, absent some legal privilege…. Thus an e-mail message, like a letter, cannot be afforded a reasonable expectation of privacy once that message is received.” Id.at 831.
“Even though the government’s search of [defendant’s] emails violated the Fourth Amendment, the emails are not subject to the exclusionary remedy if the officers relied in good faith on the SCA to obtain them.” Id. at 288.
However, “[p]rivacy in social networking is an emerging, but underdeveloped, area of case law.” Ehling v Monmouth-Ocean Hosp Serv Corp, 872 F Supp 2d 369, 373 (DNJ 2012).
“Fourth Amendment provided no protection to an individual against the recording of his statements by the IRS agent to whom he was speaking.” People v Collins, 438 Mich 8, 25; 475 NW2d 684, 691 (1991). “[C]itizens assume the risk that their associates may be government informants and that communications made to such agents are not within the protection of the Fourth Amendment.” Id. at 694.
CONCLUSION
As there are no independent statutory remedy of suppression for interceptions of electronic communications, suppression is not a permissible statutory remedy under Title III for the illegal interception of an electronic communication. Moreover, privacy issues shall be determined by the court analyzing the alleged intrusion into one’s privacy and thereafter shall adopt a test for reasonable expectation of privacy to provide the room of protection and to check whether such intrusions falls within the purview of fourth amendment.
