351:
communication. The court then stated that communication via email is akin to communication via letters and telephone calls because email is pervasive and can be personal. Furthermore, the court declared it would be incongruous to treat email, letters, and telephone calls differently because of the method of delivery. "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."
331:, the purpose of the Fourth Amendment is "to safeguard the privacy and security of individuals against arbitrary invasions by government officials." To fall under the protection of the Fourth Amendment, the invasion by government officials must arise to the level of a search, which occurs when the government infringes upon "an expectation of privacy that society is prepared to consider reasonable." Thus, there is a two-part inquiry to decide if an invasion by the government qualifies as an unreasonable search under the Fourth Amendment:
382:
Fourth
Amendment, the exclusionary rule does not apply, as the government relied in good faith on § 2703(b) and § 2703(d) to access the contents of Warshak's emails." The court held that the primary reason the exclusionary rule did not apply is because the deterrence rationale is lacking, quoting a prior decision, the court stated that "...where an officer acts in objectively reasonable reliance upon a statute that is later found unconstitutional, exclusion of the evidence would not deter future police misconduct."
30:
227:
apparent percentage of refunded charges through questionable tactics. One tactic was to charge the customer's account multiple times for the same purchase, once for the purchase of the supplement and another time for shipping. Warshak referred to this as "double dinging". Later, he instituted the practice of "triple dinging" as well. Additionally, to secure other lines of credit, Warshak, along with his mother
Harriet, provided false information to banks.
223:
being enrolled in an "auto-ship" program which would charge their credit card at the end of the first prescription period and send them a refill for their current prescription. To end this auto-shipping, customers had to opt out of the program. This program led to a large number of consumer complaints filed against
Berkeley.
354:
Analogizing email to letters and telephone calls, the court declared that an ISP is the functional equivalent of the post office or telephone company. The government cannot compel them to turn over the content of communications absent a warrant based on probable cause. "It only stands to reason that,
346:
The court then proceeded to the second prong of the inquiry, whether society is willing to accept
Warshak's expectation of privacy as reasonable. The court stated that the question is of grave importance because email communication has assumed a prominent role in today's society. Moreover, the Fourth
318:
or by obtaining a court order, depending on certain statutory classifications. Government agents ordered
Warshak's ISP to store emails citing 18 U.S.C. § 2703(f) as granting them that authority. The government then ordered the ISP to turn over the content of Warshak's emails using a subpoena. Warshak
305:
The court held that government agents infringed upon
Warshak's Fourth Amendment rights when they compelled his ISP to produce the content of his emails without first obtaining a warrant based on probable cause. As the government agents operated in good faith on provisions of the Stored Communications
222:
Sales of
Berkeley's products occurred via telephone, email, and the Internet. Over the phone, Berkeley's sales force followed a script approved by Warshak designed to try to slip pertinent information past the customer. In the script, customers signing-up for a free trial were informed that they were
433:
his telephone line without a warrant. This type of action would not survive a challenge under the Fourth
Amendment: "The government cannot use email collection as a means to monitor citizens without a warrant anymore than they can tap a telephone line to monitor citizens without a warrant." However,
377:
The court concluded that a subscriber enjoys a reasonable expectation of privacy in the contents of emails sent or received through, or stored with, a commercial ISP. Therefore, the government violated
Warshak's Fourth Amendment rights when they obtained the contents of his emails. The court went on
226:
The auto-ship program and customers' dislike for this practice resulted in many orders being canceled. The canceled orders hurt Berkeley's reputation among banks and credit card companies who became reluctant to extend credit to Berkeley. To combat this, Warshak invented various ways of reducing the
428:
The concurring opinion addressed the use of the SCA by the government to request that Warshak's ISP retain emails it would have otherwise deleted. Section 2703(f) of the SCA, according to Judge Keith, should have no prospective effect. The government's request that the ISP preserve Warshak's stored
342:
Analyzing the first prong of the two-part inquiry using the facts of the case, the Sixth Circuit found that Warshak manifested a subjective expectation of privacy in the content of his emails. The court reasoned that: "iven the often sensitive and sometimes damning substance of his emails, we think
399:
The Sixth Circuit held that the government violated Steven Warshak's Fourth Amendment rights when it compelled his ISP to turn over the contents of his email without a warrant based on probable cause. However, the emails were not excluded from evidence because the government agents relied in good
390:
Additionally, the court sustained the convictions for conspiracy to commit mail, wire, and bank fraud, along with the convictions for mail fraud, bank fraud, and money laundering because the evidence was sufficient to support them. However, Warshak's sentence was vacated and remanded to the lower
381:
However, even though the government violated Warshak's Fourth Amendment rights, the illegally obtained emails were not subject to exclusionary rules of evidence because the agents of the government relied in good faith on the SCA. "Consequently, we find that, although the government violated the
358:
The threat of possible access by an ISP to the content of a subscriber's email does not defeat this reasonable expectation of privacy, the court continued. Both the post office and telephone companies have the ability to access and the right to access, under certain conditions, the contents of a
350:
The court began by discussing traditional forms of communication such as letters and telephone calls. Each enjoys Fourth Amendment protection. This protection does not disappear even though intermediaries, such as the post office or a telephone company, are capable of accessing the content of
359:
communication, yet these facts do not eliminate Fourth Amendment protection. There may be some cases where the subscriber agreement may be broad enough to defeat a reasonable expectation of privacy in the content of a subscriber's email, but the court held that this was not such a situation.
218:
In 2001, Berkeley launched Enzyte and by 2004, Berkeley's annual sales approached $ 250 million, in large part due to the success of Enzyte. Enzyte was marketed extensively, and approximately 98% of the advertising was done on television featuring a character known as "Smilin' Bob." In some
219:
advertisements, Berkeley presented false information. Phony surveys were presented as fact at Warshak's request, the customer satisfaction rating of 96% was fabricated according to Warshak's request, and even the medical professionals who Berkeley claimed developed Enzyte were fictitious.
277:
In January 2008, the case went to trial. Six weeks later Warshak and his mother were convicted of a majority of the charges. Shortly thereafter, a jury found that certain assets were sufficiently related to the crimes such that Warshak was ordered to forfeit illegally obtained gains.
230:
Much of the information about Warshak's questionable activities was contained in his email correspondence. In conjunction with a criminal investigation of Warshak and his questionable business practices, the government seized roughly 27,000 private emails from Warshak's ISP.
355:
if government agents compel an ISP to surrender the contents of a subscriber's emails, those agents have thereby conducted a Fourth Amendment search, which necessitates compliance with the warrant requirement absent some exception."
909:
319:
was not informed that his ISP was archiving his email and he did not receive notice of the subpoena and order to his ISP until May 2006, nearly one year after the government served the subpoena.
211:
Steven Warshak owned and operated Berkeley Premium Nutraceuticals, Inc. (Berkeley) which sold, among other products, an herbal supplement marketed as a pill for natural male enhancement, called
88:
Government agents violated the defendant's Fourth Amendment rights when they compelled his ISP to produce the content of his emails without first obtaining a warrant based on probable cause.
168:
187:. However, constitutional violation notwithstanding, the evidence obtained with these emails was admissible at trial because the government agents relied in good faith on the
172:
142:
914:
270:
with more than 100 counts charging Warshak and his mother with various crimes including conspiracy to commit mail, wire, and bank fraud, mail fraud, bank fraud, and
251:
which was affirmed by the Sixth Circuit, finding that Warshak had a privacy interest in the content of his emails. However, that decision was reviewed by an
616:
370:
involved simple business records, the emails at issue here are personal and confidential and concern a wide variety of topics. Where the information in
285:
the sums of $ 459,540,000 and $ 44,876,781.68 which represented the proceeds of the crimes. Harriet was sentenced to 24 months imprisonment and to be
919:
191:(SCA). The court further declared that the SCA is unconstitutional to the extent that it allows the government to obtain emails without a warrant.
924:
894:
378:
to declare: "to the extent that the SCA purports to permit the government to obtain such emails warrantlessly, the SCA is unconstitutional."
813:
904:
879:
829:
198:
in the content of e-mails stored on third party servers and that the content of these emails is subject to Fourth Amendment protection.
682:
662:
645:
628:
328:
149:
194:
This case is notable because it is the first case from the United States Circuit Court of Appeals to explicitly hold that there is a
281:
In August 2008, the defendants were sentenced. Warshak received a prison term of 25 years, ordered to pay a fine of $ 93,000 and to
195:
343:
it highly unlikely that Warshak expected them to be made public, for people seldom unfurl their dirty laundry in plain view."
817:
292:
The defendants appealed their convictions, sentences, and forfeiture judgments resulting in the opinion discussed here.
374:
was used in the ordinary course of business of the bank, the ISP here was an intermediary, not the intended recipient.
874:
434:
because Judge Keith's interpretation of § 2703(f) did not affect the outcome of the case, he concurred in the result.
286:
247:. Warshak claimed that the compelled disclosure violated his Fourth Amendment rights. The district court filed a
188:
176:
146:
594:
547:
776:
391:
court because the court's previous ruling lacked an adequate explanation of losses to justify the sentence.
407:
AFFIRMED the forfeiture judgments against him, VACATED the 25-year sentence, and REMANDED for resentencing.
756:
447:
248:
899:
736:
335:
has the defendant manifested a subjective expectation of privacy in the object of the challenged search?
306:
Act, the exclusionary rule was not applicable and reversal of Warshak's convictions was not warranted.
29:
240:
851:
105:
443:
274:. Warshak moved before trial to exclude emails obtained from his ISP; which the court denied.
244:
314:
Under the SCA, agents of the government can request access to emails using an administrative
865:
410:
AFFIRMED Harriet's convictions except those related to money laundering, which were REVERSED
282:
271:
582:
564:
521:
77:
215:. His mother, Harriet Warshak, worked at Berkeley with him in the credit card department.
861:
A User's Guide to the Stored Communications Act, and a Legislator's Guide to Amending It
184:
180:
109:
605:
888:
686:
666:
649:
632:
347:
Amendment must not fall behind technological advances or it will "wither and die."
153:
800:
782:
742:
722:
704:
762:
430:
101:
267:
263:
814:
House Advances Email Privacy Act, Setting the Stage for Vital Privacy Reform
239:
On June 12, 2006, Warshak filed a claim against the United States seeking a
429:
and future email communications without notifying Warshak is analogous to
536:
315:
256:
869:
252:
212:
400:
faith on the provisions of the SCA. As a result, the Sixth Circuit:
366:
which involved business records voluntarily given to a bank. Where
860:
852:
Applying the Fourth Amendment to the Internet: A General Approach
167:, 631 F.3d 266 (6th Cir. 2010) is a criminal case decided by the
338:
is society willing to recognize that expectation as reasonable?
419:
REVERSED money-laundering forfeiture judgment against Harriet
416:
AFFIRMED proceeds-money forfeiture judgment against Harriet
76:
631 F.3d 266; 2010 WL 5071766; 2010 U.S. App. LEXIS 25415;
910:
United States Court of Appeals for the Sixth Circuit cases
864:, 72 George Washington L. Rev. 1208 (2004). Available at
606:
Department of Justice: Sentencing of Berkeley Executives
179:(ISP) to turn over his emails without first obtaining a
171:
holding that government agents violated the defendant's
830:
The House Votes Unanimously to Strengthen Email Privacy
548:
Ads for Male Enhancement Pill Bogus, Former Exec Says
880:
Email is protected by Fourth Amendment, ZDNet Report
169:
United States Court of Appeals for the Sixth Circuit
40:
United States Court of Appeals for the Sixth Circuit
136:
128:
120:
115:
97:
92:
82:
72:
64:
56:
44:
36:
20:
143:Fourth Amendment to the United States Constitution
532:
530:
511:
509:
507:
505:
503:
501:
499:
497:
495:
493:
491:
489:
487:
8:
485:
483:
481:
479:
477:
475:
473:
471:
469:
467:
677:
675:
255:panel of the Sixth Circuit and vacated on
17:
289:with Warshak for the forfeiture amounts.
915:United States Fourth Amendment case law
617:NY Times: Warshak Gets 25 Year Sentence
463:
413:VACATED and REMANDED Harriet's sentence
50:United States v. Steven Warshak et al.
7:
875:EFF declares victory in Warshak case
14:
855:, 62 Stanford L. Rev. 1005 (2010)
362:Finally, the court distinguished
196:reasonable expectation of privacy
454:, applying its rule nationwide.
28:
920:United States Internet case law
438:Subsequent proposed legislation
310:Stored Communications Act (SCA)
925:United States privacy case law
895:2010 in United States case law
818:Electronic Frontier Foundation
450:, would codify the holding in
404:AFFIRMED Warshak's convictions
1:
287:jointly and severally liable
905:Search and seizure case law
537:Warshak Business Background
446:, a bill introduced in the
329:United States Supreme Court
941:
718:United States v. Jacobsen
585: (6th Cir. 2008).
567: (6th Cir. 2007).
524: (6th Cir. 2010).
189:Stored Communications Act
177:Internet service provider
175:rights by compelling his
147:Stored Communications Act
141:
124:Boggs, joined by McKeague
87:
27:
578:United States v. Warshak
560:United States v. Warshak
517:United States v. Warshak
164:United States v. Warshak
22:United States v. Warshak
777:United States v. Miller
364:United States v. Miller
757:Kyllo v. United States
448:United States Congress
249:preliminary injunction
737:California v. Ciraolo
522:631 F.3d 266-
262:In September 2006, a
801:480 U.S. 340
783:425 U.S. 435
743:476 U.S. 207
723:466 U.S. 109
705:387 U.S. 523
583:532 F.3d 521
565:490 F.3d 455
296:Opinion of the court
266:in Ohio returned an
241:declaratory judgment
870:10.2139/ssrn.421860
763:533 U.S. 27
700:Camara v. Mun. Ct.
424:Concurring opinion
235:Procedural history
836:(April 29, 2016).
820:(April 27, 2016)/
796:Illinois v. Krull
745:, 211 (1986).
725:, 113 (1984).
707:, 528 (1967).
444:Email Privacy Act
327:As stated by the
245:injunctive relief
160:
159:
932:
837:
827:
821:
810:
804:
798:
792:
786:
780:
772:
766:
765:, 34 (2001).
760:
752:
746:
740:
732:
726:
720:
714:
708:
702:
696:
690:
689:
679:
670:
669:
659:
653:
652:
642:
636:
635:
625:
619:
614:
608:
603:
597:
595:Warshak Indicted
592:
586:
580:
574:
568:
562:
556:
550:
545:
539:
534:
525:
519:
513:
323:Fourth Amendment
272:money laundering
173:Fourth Amendment
93:Court membership
68:December 14 2010
32:
18:
940:
939:
935:
934:
933:
931:
930:
929:
885:
884:
846:
841:
840:
828:
824:
811:
807:
794:
793:
789:
774:
773:
769:
754:
753:
749:
734:
733:
729:
716:
715:
711:
698:
697:
693:
681:
680:
673:
661:
660:
656:
644:
643:
639:
627:
626:
622:
615:
611:
604:
600:
593:
589:
576:
575:
571:
558:
557:
553:
546:
542:
535:
528:
515:
514:
465:
460:
440:
426:
397:
388:
325:
312:
303:
298:
237:
209:
204:
12:
11:
5:
938:
936:
928:
927:
922:
917:
912:
907:
902:
897:
887:
886:
883:
882:
877:
872:
858:Orin S. Kerr,
856:
849:Orin S. Kerr,
845:
844:External links
842:
839:
838:
834:New York Times
822:
805:
787:
767:
747:
727:
709:
691:
687:§ 2703(f)
671:
667:§ 2703(d)
654:
650:§ 2703(b)
637:
633:§ 2703(a)
620:
609:
598:
587:
569:
551:
540:
526:
462:
461:
459:
456:
439:
436:
425:
422:
421:
420:
417:
414:
411:
408:
405:
396:
393:
387:
384:
340:
339:
336:
324:
321:
311:
308:
302:
299:
297:
294:
236:
233:
208:
205:
203:
200:
185:probable cause
181:search warrant
158:
157:
150:18 U.S.C.
139:
138:
134:
133:
130:
126:
125:
122:
118:
117:
113:
112:
110:David McKeague
99:
98:Judges sitting
95:
94:
90:
89:
85:
84:
80:
79:
74:
70:
69:
66:
62:
61:
58:
54:
53:
46:
45:Full case name
42:
41:
38:
34:
33:
25:
24:
13:
10:
9:
6:
4:
3:
2:
937:
926:
923:
921:
918:
916:
913:
911:
908:
906:
903:
901:
898:
896:
893:
892:
890:
881:
878:
876:
873:
871:
867:
863:
862:
857:
854:
853:
848:
847:
843:
835:
831:
826:
823:
819:
815:
812:Sophia Cope,
809:
806:
802:
797:
791:
788:
784:
779:
778:
771:
768:
764:
759:
758:
751:
748:
744:
739:
738:
731:
728:
724:
719:
713:
710:
706:
701:
695:
692:
688:
684:
678:
676:
672:
668:
664:
658:
655:
651:
647:
641:
638:
634:
630:
624:
621:
618:
613:
610:
607:
602:
599:
596:
591:
588:
584:
579:
573:
570:
566:
561:
555:
552:
549:
544:
541:
538:
533:
531:
527:
523:
518:
512:
510:
508:
506:
504:
502:
500:
498:
496:
494:
492:
490:
488:
486:
484:
482:
480:
478:
476:
474:
472:
470:
468:
464:
457:
455:
453:
449:
445:
437:
435:
432:
423:
418:
415:
412:
409:
406:
403:
402:
401:
394:
392:
385:
383:
379:
375:
373:
369:
365:
360:
356:
352:
348:
344:
337:
334:
333:
332:
330:
322:
320:
317:
309:
307:
300:
295:
293:
290:
288:
284:
279:
275:
273:
269:
265:
260:
258:
254:
250:
246:
242:
234:
232:
228:
224:
220:
216:
214:
206:
201:
199:
197:
192:
190:
186:
182:
178:
174:
170:
166:
165:
155:
151:
148:
144:
140:
135:
131:
127:
123:
119:
116:Case opinions
114:
111:
107:
103:
100:
96:
91:
86:
81:
78:
75:
71:
67:
63:
59:
55:
52:
49:
47:
43:
39:
35:
31:
26:
23:
19:
16:
900:Health fraud
859:
850:
833:
825:
808:
803: (1987).
795:
790:
785: (1976).
775:
770:
755:
750:
735:
730:
717:
712:
699:
694:
657:
640:
623:
612:
601:
590:
577:
572:
559:
554:
543:
516:
451:
441:
427:
398:
389:
386:Other issues
380:
376:
371:
367:
363:
361:
357:
353:
349:
345:
341:
326:
313:
304:
291:
280:
276:
261:
238:
229:
225:
221:
217:
210:
193:
163:
162:
161:
137:Laws applied
60:June 16 2010
51:
48:
21:
15:
154:§ 2701
129:Concurrence
106:Danny Boggs
102:Damon Keith
889:Categories
458:References
268:indictment
264:grand jury
202:Background
683:18 U.S.C.
663:18 U.S.C.
646:18 U.S.C.
629:18 U.S.C.
259:grounds.
183:based on
316:subpoena
257:ripeness
121:Majority
73:Citation
452:Warshak
431:tapping
301:Holding
283:forfeit
253:en banc
156:et seq.
83:Holding
65:Decided
799:,
781:,
761:,
741:,
721:,
703:,
685:
665:
648:
631:
581:,
563:,
520:,
395:Result
372:Miller
368:Miller
213:Enzyte
152:
108:, and
57:Argued
207:Facts
132:Keith
37:Court
442:The
243:and
866:doi
816:,
891::
832:,
674:^
529:^
466:^
145:,
104:,
868::
Text is available under the Creative Commons Attribution-ShareAlike License. Additional terms may apply.
