Cops Need Warrant for|E-mail, Court Rules

(CN) - In what is believed to be the first decision of its kind, a federal appeals court found that law-enforcement officials violated the Fourth Amendment in not obtaining a warrant before ordering an Internet service provider turn over a citizen's e-mails.

The finding stands out amid the 6th Circuit's 93-page ruling on the fraud convictions of Steven Warshak, founder of Berkeley Premium Nutraceuticals, and his mother, Harriet.

Though the court concluded that law enforcement illegally searched Steven's e-mail, it did not exclude the resulting evidence because the agents relied on good faith.

In a four-page concurring opinion, Senior Judge Damon J. Keith blasted a different aspect of the government's conduct in the Warshak investigation as "no more than back-door wire-tapping." The government had ensured preservation of Steven's stored and future e-mail messages without his knowledge and without a warrant, but Keith added that the conduct was ultimately irrelevant from the issue under appeal.

The Warshaks were convicted in 2008 of defrauding customers of Enzyte, a male-enhancement pill.

Steven was sentenced to 25 years in prison for perpetrating a scheme that federal prosecutors said resulted in $400 million in losses by his customers and creditors.

The 6th Circuit affirmed Steven's convictions but vacated the 25-year sentence. It also dropped the money-laundering conviction against Steven's elderly mother, Harriet, but upheld the bank fraud conviction, as well as the convictions for conspiracy to commit mail, wire and bank fraud. Her sentence was also vacated.

In the appellate ruling, which is expected to have a huge impact on how Internet service providers (ISPs) balance the privacy rights of customers and their data with requests made by law enforcement, the three-judge panel held that investigators violated Steven's rights by ignoring the Constitutional restriction on unreasonable search and seizures.

Steven had a reasonable privacy expectation for his e-mails, the ruling states, likening the ISP, NuVox, to a post office or telecommunications service provider.

In the court's majority opinion, Judge Danny Boggs wrote that it is common sense to afford e-mails the same protection granted to traditional forms of communication.

"If we accept that an e-mail is analogous to a letter or a phone call, it is manifest that agents of the government cannot compel a commercial ISP to turn over the contents of an e-mail without triggering the Fourth Amendment," the ruling states. "An ISP is the intermediary that makes e-mail communication possible. E-mails must pass through an ISP's servers to reach their intended recipient. Thus, the ISP is the functional equivalent of a post office or a telephone company. ... Police may not storm the post office and intercept a letter, and they are likewise forbidden from using the phone system to make a clandestine recording of a telephone call - unless the get a warrant, that is."

Shortly after the Warshaks' convictions, Steven's company, Berkeley Premium Nutraceuticals, filed for bankruptcy, listing $479 million in unsecured debts, and the actor who played Enzyte's memorable grinning spokesman, "Smilin' Bob," went missing. John Larson reportedly disappeared and is presumed dead after a boating accident near the Caribbean island of Martinique, though others insist the disappearance is an unproven Internet rumor.

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