Since 2010, the SEC has abided by the Sixth Circuit’s decision in United States v. Warshak, and has not subpoenaed emails of an individual from third party service providers.   That changed, however, when the SEC decided to test the law by filing a recent action against Yahoo to force compliance with a subpoena for the emails of an individual.

In Warshak, the court held that the use of something less than a warrant, such as a subpoena or court order under the Electronic Communications Privacy Act (ECPA), violates the Fourth Amendment.  Not only had the SEC respected that decision but the DOJ had also changed its policies to comply with Warshak.  While the SEC stayed out of court, it did oppose efforts in Congress to codify the Warshak holding via ECPA reform.  However, when Yahoo refused to comply with an SEC subpoena based on Warshak, the SEC took Yahoo to court, leading to a hearing on the matter on June 30, 2017 in the federal court for the District of Maryland. SEC v. Yahoo, Inc., Case No. 8:15cv1339 (D. Md) (GJH).  While the Judge did not make a decision at the hearing, he did express views on the facts and law that will influence his decision.
Continue Reading In Action Against Yahoo, the SEC Seeks Emails Without A Warrant