THIRD CIRCUIT UPHOLDS IMMUNITY FOR AGENTS THAT USED INVALID SUBPOENA TO OBTAIN EMAIL

March 2019

March 2019

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Article Source: http://llrmi.com/articles/legal_updates/2019_walker_v_coffey/

On September 20, 2018, the Third Circuit Court of Appeals decided Walker v. Coffey et al.i, in which the court discussed whether state law enforcement officials should be entitled to qualified immunity for intentionally using an invalid subpoena to get an employer to provide one of its employee’s emails as evidence in a criminal prosecution. The relevant facts of Walker are as follows:

In October 2015, before her trial had been scheduled, Coffey and Zimmerer sought to obtain Walker's work emails from her employer, Penn State, as part of their investigation. Coffey and Zimmerer initially asked Penn State to produce Walker's work emails voluntarily, but Penn State officials requested formal documentation, saying, "We just need something formal, a subpoena." Coffey and Zimmerer then obtained a blank subpoena form from the Centre County Court of Common Pleas, which they filled out in part. The subpoena includes the case caption, is addressed to "John Corro, PSU General Counsel & Senior Security Systems Analyst," and requests production of "any & all emails/computer files/documents/attachments to or from Carol Lee Walker at her email address, to or from the following email addresses: . . .." The seven listed email addresses appear to belong to either Walker's husband or his business. The subpoena is blank as to the date, time, and place of production and the party on behalf of whom testimony is required. As such, Appellees concede that the subpoena was, on its face, incomplete and unenforceable. On October 21, 2015, Zimmerer presented the unenforceable subpoena to Katherine Allen, Assistant General Counsel at Penn State. Under Allen's direction, Penn State employees searched for the requested emails and turned them over to Zimmerer. At some point after Penn State produced the emails, the remaining criminal charges against Walker were dismissed with prejudice, nolle prosequi."ii

Walker subsequently filed suit in federal court and alleged that Zimmerer and Coffey violated her rights under the Fourth Amendment when they used an invalid subpoena to obtain her work email. The district court granted Zimmerer and Coffey’s motion for qualified immunity. Walker filed a motion for

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reconsideration and time to amend the suit to include a claim for a violation of the Stored Communications Act (SCA). The district court denied Walker’s motions, and she appealed to the Third Circuit Court of Appeals.

The court of appeals first discussed qualified immunity. An officer is entitled to qualified immunity when he or she is undertaking a discretionary function, such as making an arrest or conducting a search. For a plaintiff to defeat the officer’s qualified immunity, the plaintiff must show (1) that the officer violated a constitutional right, and (2) that the right was clearly established such that another reasonable officer in the same situation would have known the conduct was unlawful. A right is “clearly established” by case law that is similar enough to put an officer on notice that the conduct is unlawful such that it is “beyond debate.”iii

The court then framed the issue in this case, as it relates to whether the officers are entitled to qualified immunity, as follows:

[W]hether it is clearly established that the Fourth Amendment affords an employee, such as Walker, the right to have the contents of her work emails remain free from a law enforcement search, absent a warrant or valid exception to the warrant requirement.iv

The court then examined the Supreme Court case, U.S. v. Katzv, in which the Supreme Court held that Katz had a reasonable expectation of privacy to his phone conversation in a phone booth.

Conversely, in Smith v. Marylandvi, the Supreme Court held that a person does not have a reasonable expectation of privacy to the phone numbers that they dial because they voluntarily turn those numbers over to a third party, specifically the phone company, when they make a call. The Third Circuit stated

The core holding of Smith rested upon the established rule that "a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties." This principle—the third-party doctrine—has arisen in a variety of contexts. With regard to communications, the third-party doctrine often dictates distinct treatment for the content of communications as opposed to surface-level identifying information or metadata.vii [emphasis added]

While content of the phone calls is generally protected, the court noted that it is not “categorically protected.”viii For example, in the Supreme Court case, U.S. v. Millerix, the Court held that Miller did not have a reasonable expectation of privacy in the contents of his bank records because he voluntarily turned over that information to the bank and exposed it to bank employees in the course of business.

Additionally, in the City of Ontario v. Quonx, the Supreme Court assumed, for the sake of the case, that Quon had a reasonable expectation of privacy in the text messages he sent on his work pager, but held that the employers search of those messages was reasonable because it was conducted for a legitimate work-related purpose, which is an exception to the Fourth Amendment warrant requirement.

While the above cases from the Supreme Court all provide guiding principles, they do not contain facts similar enough to Walker’s case as to “clearly establish” the law such that the unlawfulness of the conduct is beyond debate.

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Additionally, there were no Circuit Court cases close enough on point such that a body of law could be considered established for the purpose of clearly establishing law in Walker’s case.

Thus, the Third Circuit held that the Walker’s right to privacy in the content of her work emails was not clearly established and Zimmerer and Coffey were entitled to qualified immunity.

However, the court also discussed the fact that employees have a diminished expectation of privacy in the workplace. Particularly, the court stated

The Supreme Court has recognized that employees may be entitled to a reasonable expectation of privacy in the contents of documents stored in the workplace, both in the private and public sectors. At the same time, public employers remain free to conduct a warrantless search of an employee's files or communications if the search is "conducted for a 'noninvestigatory, work-related purpos[e]' or for the 'investigatio[n] of work-related misconduct.'" This rule is consistent with the nature of an employer-employee relationship and reflects an understanding that, although employees may have certain privacy interests in their work-related documents and communications vis-à-vis outsiders, their privacy interests vis-à-vis their employer are far more circumscribed.xi [emphasis added]

Additionally, the court stated that employers have been viewed by the courts as third-parties who possess common authority over workplace; as such, a third party with common authority can give consent to search an employee’s workspace. The court stated

[C]ourts have long recognized that employers, as third parties who possess common authority over the workplace, may independently consent to a search of an employee's workplace documents or communications. This rule is a logical application, in the workplace context, of general principles governing third-party consent. An individual or entity exercising common authority over the place or thing to be searched may independently consent to a search.xii [emphasis added]

As an example of the above principle, the court cited the Ninth Circuit in the U.S. v. Zieglerxiii, in which the FBI suspected Ziegler was involved in child pornography. An agent spoke to Ziegler’s employer, and the employer made a copy of the hard drive and provided it to the FBI. While the Ninth Circuit held that Ziegler did have a reasonable expectation of privacy in the contents of his computer, the court still concluded the search was lawful “because the FBI obtained consent from the employer, who exercised common authority over the workplace computer at issue.”xiv

In light of the above, the Third Circuit, in the case at hand, stated

There is no dispute that the emails in question were sent or received via Walker's work email address, as part of an email system controlled and operated by Penn State. Thus, for purposes of the Fourth Amendment, the emails were subject to the common authority of Walker's employer. Walker did not enjoy any reasonable expectation of privacy vis-à- vis Penn State, and Penn State could independently consent to a search of Walker's work emails. Upon receipt of the subpoena, Penn State exercised its independent authority to consent to a search and produced Walker's work emails.xv

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Walker argued that her employer’s, Penn State, consent should be invalid because it was induced by an invalid subpoena. However, the Third Circuit held that the consent was valid because the subpoena was produced and submitted to Penn State’s Assistant General Counsel (their attorney) and he instructed the employer to comply.

Thus, the Third Circuit affirmed the district courts grant of qualified immunity for Zimmerer and Coffey on the Fourth Amendment claim.

Third Circuit did remand the case to the district court with instructions to allow Walker to amend the complaint to include the SCA. As such, the court of appeals vacated the district court’s decision to deny leave to file amended complaint to include the SCA claim.

i No. 17-2172 (3rd Cir. Decided September 20, 2018) ii Id. at 4-5

iii Id. at 8

iv Id. at 9

v 389 U.S. 347 (1967)

vi 442 U.S. 735 (1979)

vii Walker, No. 17-2172 at 11-12 viii Id. at 12

ix 425 U.S. 435 (1976)

x 560 U.S. 746 (2010)

xi Walker at 17

xii Id. at 18

xiii 474 F.3d 1184 (9th Cir. 2007) xiv Walker at 19

xv Id.

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Johnathan Baldree

THIRD CIRCUIT UPHOLDS IMMUNITY FOR AGENTS THAT USED INVALID SUBPOENA TO OBTAIN EMAIL

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