Emails, Interception and Private Actors

This post is about a case that raised issues I’ve discussed in prior posts that arise in a rather unique context. But before we get to the issues, I need to note how the case arose.

The case is People v. Theobald, 2009 WL 5062033 (California Court of Appeals 2009). Herehere is how the California Court of Appeals described the facts that led to the opinion we’ll be analyzing in a moment:

Defendant [Brad Theobald] was born in July 1980.

A Corona police detective, Michelle McConnell, testified she interviewed Jane Doe, who was born in June 1990, on August 21, 2007. Jane Doe said she first met defendant in 2006 when he was a coach for a high school track team.

Their first sexual intercourse occurred in April 2007 at Huntington Beach at the lifeguard tower. Two weeks later, they had intercourse in a car at a Norco park. A third time they had intercourse and oral sex at the park. They also had intercourse at [Theobald’s] Upland apartment. A fifth incident of intercourse occurred in a car in a Home Depot parking lot. Jane Doe recalled two other instances of oral sex in a car. They engaged consensually in at least five instances of intercourse and three of oral sex. . . .

[T]he People charged [Theobald] with three counts of unlawful oral copulation ([in violation of California Penal Code § 288a, subd. (b)(1)]) and five counts of unlawful sexual intercourse. ([in violation of California Penal Code § 261.5, subd. (c).])

People v. Theobald, supra. Prior to trial, Theobald moved to suppress evidence “on the grounds that an email from Jane Doe to him was obtained without his consent by his friend, Brandon Kaan, at the behest of” Theobald’s wife. People v. Theobald, supra. Theobald claimed that if “Kaan had not obtained the email, Jane Doe would never have been identified and questioned by the police.” People v. Theobald, supra. Later in the opinion, the Court of Appeals explains that the

email was sent from Jane Doe to [Theobald]. It expresses Jane Doe's concern that [his] wife would discover her identity, which would be `horrible actually.’ [Theobald’s] friend, Kaan, who knew [Theobald’s] password, was able to access his email account and then, using Jane Doe's email address, identify her as a student at the high school where both men taught. Kaan then reported the information to the police.

People v. Theobald, supra.

Theobald based his motion to suppress primarily on two arguments: One was that “the email and any information derived from it constituted an illegal `interception’ of the electronic communication” between him and Jane Doe in violation of 18 U.S. Code § 2511; the other argument was that the email was obtained in violation of the 4^th Amendment. People v. Theobald, supra.

The trial court denied Theobald’s motion to suppress and he would up pleading “no contest to eight sexual offenses” (presumably the eight noted above). People v. Theobald, supra. He was sentenced to “eight concurrent terms of two years in prison” but the trial court “spared” him “from being required to register as a sex offender”. People v. Theobald, supra.

Theobald apparently reserved his right to appeal the trial court’s denial of his motion to suppress, because that’s the primary issue he raised on appeal. (He also challenged testimony at his preliminary hearing as violating the rules against hearsay, but we’re not concerned with that argument.) People v. Theobald, supra.

As I noted above, Theobald argued on appeal that the way police gained access to the Jane Doe email violated 18 U.S. Code § 2511 and/or the 4^th Amendment. People v. Theobald, supra. He lost on both issues.

As I explained in an earlier post, 18 U.S. Code § 2511 makes it illegal to “intercept” the contents of a wire, oral or electronic communication without complying with certain requirements. The Jane Doe email was clearly an “electronic communication” within the scope of § 2511, and Kaan obtained the contents of the email without complying with the statute’s requirements. So Theobald had the beginnings of a credible argument under § 2511.

The problem was that § 2511 makes it illegal to “intercept” the contents of an electronic communication; therefore, to violate§ 2511 Kaan not only had to obtain the contents of an electronic communication without complying with the statute’s requirements, he also had to have “intercepted” those contents. As I explained in my prior post on this issue, courts generally agree that to “intercept” the contents of an electronic communication, the contents must have been obtained contemporaneously with the transmission of the communication. Or as some courts have put it, the contents must have been obtained “in flight,” i.e., while they’re traveling from sender and receiver. In my prior post, I explained why interception is being construed in that fashion.

Theobald, of course, couldn’t show that the contents of the Jane Doe email had been obtained while they were in transmission, which meant he couldn’t show they were “intercepted” in violation of 18 U.S. Code § 2511. The trial court therefore denied his motion to suppress the email, noting that retrieving a stored email doesn’t constitute interception: “Interception means acquiring the data simultaneously with the original transmission.” People v. Theobald, supra. The Court of Appeals naturally agreed with the trial court: “[R]etrieving an demail after it has been received does not constitute `interception’ of an electronic communication.” People v. Theobald, supra.

That left Theobald’s 4^th Amendment argument. As I’ve noted in earlier posts, it’s simply not clear if emails left stored in someone’s account are protected by the 4^th Amendment. The issue, as I’ve explained in earlier posts, is basically whether you surrender your 4^th Amendment expectation of privacy in the contents of emails by leaving them stored with a third party, which can access them. So the prosecution could have argued that Theobald had no 4^th Amendment expectation of privacy in the email; and if he had no 4^th Amendment right to privacy in the email, then what Kaan did couldn’t have violated the 4^th Amendment.

Neither the trial court not the Court of Appeals took that route, though both rejected Theobald’s 4^th Amendment argument. They instead relied on a different theory.

As I noted in another post, the 4^th Amendment only applies to what’s called “state action.” That is, it only protects us from law enforcement officers when they are acting as law enforcement officers, i.e., are collecting evidence to be used in a criminal case.

As I explained in that post, the 4^th Amendment doesn’t protect us from “private actors,” i.e., from people who are not associated with law enforcement but who decide to collect evidence on their own and take it to the police. As I also explained, the only way the 4^th Amendment can apply to the actions of a private person is if that private person had become an agent of the state when he/she sought out evidence and took it to the police.

So, as both the trial court and the Court of Appeals held in the Theobald case, Kaan’s collecting the Jane Doe email from Theobald’s email account would implicate the 4^th Amendment if Kaan was acting as an agent of the state (i.e., an agent of the police) when he obtained it. People v. Theobald, supra.

As I’ve also explained, to become an agent of the state you have to meet two requirements: One is that you had to have acted to benefit law enforcement; that requirement is of course met here, as it is in every case where someone collected evidence and took it to the police. But, as I tell my students, a private person’s acts are not, in and of themselves, binding on law enforcement. Becoming an agent of the state (or the police) also requires that the police have encouraged you to collect the evidence or done something else to indicate that they sanction your conduct. It’s something like a contract: I may be angry at my neighbor and grab evidence from his garage and take it to the police to get him prosecuted, but that, alone, doesn’t make me an agent of the state; there has to have been an agreement, in effect a contract, between us. The state has to have sicced me on my neighbor or at least acquiesced in what I was going to do, knowing I was going to do it.

We don’t have that in the Theobald case. In denying Theobald’s motion to suppress, the trial court held that the “`”seizure” of e-mails was by a private party and not acting on behalf of law enforcement but rather on behalf of a private party, [Theobald’s] wife.’” People v. Theobald, supra. The Court of Appeals agreed:

[T]he Fourth Amendment [protection] against illegal search and seizure does not afford protection to the subject email because it was obtained by a private party who then shared the information with the police. . . . Even if the private party intended to assist law enforcement, government participation has to be extensive enough to trigger Fourth Amendment scrutiny. . . . In the present case, Kaan acted on his own before contacting the police. No Fourth Amendment protection applied to his conduct as a private citizen.

People v. Theobald, supra. The Court of Appeals therefore upheld Theobald’s conviction and the sentence imposed on him. People v. Theobald, supra.