Katz objected to these recordings being played at his trial. An appellate court allowed the recordings to be played, writing that—as in the Olmstead case—no Fourth Amendment violation had occurred because the FBI microphones had been outside the private space of the phone booth.
But when the Supreme Court took the case, it gutted this logic. “The Fourth Amendment protects people, not places,” wrote Justice Potter Stewart for the majority. “What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” He went on: “No less than an individual in a business office, in a friend’s apartment, or in a taxicab, a person in a telephone booth may rely upon the protection of the Fourth Amendment. One who occupies it, shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world. To read the Constitution more narrowly is to ignore the vital role that the public telephone has come to play in private communication.”
Though the court recognized that the agents had acted with restraint, capturing only Katz’s gambling-related calls and tossing out the rest, it refused to leave this restraint to the sole judgment of the investigators conducting the surveillance. The supervision of a judge, exerted through the warrant process, was essential. The opinion continued:
“[Agents] were not required, before commencing the search, to present their estimate of probable cause for detached scrutiny by a neutral magistrate. They were not compelled, during the conduct of the search itself, to observe precise limits established in advance by a specific court order. Nor were they directed, after the search had been completed, to notify the authorizing magistrate in detail of all that had been seized. In the absence of such safeguards, this Court has never sustained a search upon the sole ground that officers reasonably expected to find evidence of a particular crime and voluntarily confined their activities to the least intrusive means consistent with that end.”
After Katz, tapping phone calls would require a warrant.
Before the Warshak case, email on third-party servers was treated much as phone calls had been a century before—and the policy suffered from the same clear inconsistencies. The government needed a warrant to grab email from people’s personal computers, it needed a warrant to wiretap their Internet connections in real time, it needed a warrant to read their postal mail, and it needed a warrant to tap their phone calls. But when a person’s email was stored off-site on a third-party server—suddenly, no warrant was needed.
The government had an argument to defend this position, the so-called “third-party doctrine.” Once the target of surveillance had voluntarily revealed information to someone else, the idea went, it was no longer quite so private and so could be obtained from that third party with a mere subpoena, which didn’t require the high “probable cause” standard of evidence. This doctrine explained why remotely stored email was so easy to access under the SCA, despite the fact that no one “reveals” the contents of their email to their email provider in the same way they might show a letter to a friend. Not surprisingly, the third-party doctrine has been roundly criticized.
Whatever the intellectual oddities of this position, seizing email from Internet servers quickly became a practical boon for investigators. “Even just five years ago, if the government wanted to get access to potentially incriminating evidence from the home computers of ten different suspects, investigators had to convince a judge that they had probable cause in order to obtain a search warrant for each person,” wrote security researcher Chris Soghoian in a 2009 paper. “The investigating agency would then send agents to raid the homes of the individuals, remove the computers, and later perform labor-intensive forensic analysis in order to get the files.”
Data stored on remote Internet servers made this process much easier. No longer did agents need to raid someone’s home or obtain a wiretap order; they could peek at the email evidence first before going to those greater lengths. A whole host of such email orders targeted at Google’s Gmail, for instance, could be executed at once—and executed cheaply.
If the appellate judges handling Warshak followed Katz rather than Olmstead, however, email could become substantially more difficult for investigators to access. The Warshak ruling, the judges knew, would be a pivotal one, and they issued an expansive opinion that focused on the Fourth Amendment and its relationship to email.
Citing Katz, the court ripped into the Stored Communications Act and its low level of protection for email. Judge Danny Boggs wrote:
“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 [Internet Service Provider] to turn over the contents of an e-mail without triggering the Fourth Amendment. 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. As we have discussed above, the 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 they get a warrant, that is.
It only stands to reason that, if government agents compel an ISP to surrender the contents of a subscriber’s e-mails, those agents have thereby conducted a Fourth Amendment search, which necessitates compliance with the warrant requirement absent some exception.”
The court then dropped its bombshell: “To the extent that the SCA purports to permit the government to obtain such emails warrantlessly, the SCA is unconstitutional.” Email—at least in the 6th Circuit—was entitled to the same warrant protections as phone calls and letters.
Lawyers at the Electronic Frontier Foundation were jubilant. “Today’s decision is the only federal appellate decision currently on the books that squarely rules on this critically important privacy issue,” wrote EFF lawyer Kevin Bankston. “When the government secretly demands someone’s e-mail without probable cause, the e-mail provider can confidently say: ‘Come back with a warrant.’ ”
Paul Ohm, a former Justice Department lawyer turned law professor, called the ruling “a very big deal” that “marks the first time a federal court of appeals has extended the Fourth Amendment to e-mail with such care and detail.”
The ruling was good for email users; Warshak hoped it would be good for him, too. But although his constitutional rights had indeed been violated by the investigation, the court declined to overturn the verdict. Noting that most of the evidence actually presented at trial came from the physical raid on Berkeley headquarters rather than from the emails, and that the search warrant application had not used the emails as evidence, the court called the violation in Warshak’s specific case “mostly harmless.”
Berkeley Nutraceuticals entered bankruptcy as a result of the investigation, but it was rescued by its local landlord, Pristine Bay, which said it didn’t want to lose an anchor tenant. Berkeley’s name was changed to Vianda. The company now sells a “new” Enzyte blend that includes horny goat weed, ginseng, and ginkgo biloba—though it says it has ditched the shady sales practices. As for Smilin’ Bob, he’s still smiling his way through TV commercials; devotees can even order “Livin’ Large” T-shirts adorned with the character’s face.
Warshak now resides in an Ohio federal prison. (His mother, Harriet, was eventually given five years probation instead of jail time, and due to ill health was released from community service obligations.) He forfeited homes, numerous bank accounts, several vehicles, annuities, college savings plans, a $10,000 membership to the La Costa Resort and Spa, two grand pianos, and even a Segway scooter as part of the judgment against him.
The U.S. marshal for the Southern District of Ohio, which collected and sold Warshak’s valuables to pay his judgment, did a thorough job of tracking down his property—but the marshals couldn’t find the Segway, which Warshak’s family had reported stolen. Three years later, the Segway resurfaced in the abandoned property room of the local sheriff’s office. Someone had found it by the side of a highway back in 2008; it took until 2011 for police to realize that it was the missing Warshak scooter. In May 2012, after the gear had all been sold, the Department of Justice released $24 million to repay Berkeley victims.
With that, the case wound to an almost farcical close—but not before it set a powerful privacy precedent for the digital age. The next time you check your email, remember that its privacy was secured, in at least some small way, by a penis pill.
Excerpted from The Internet Police: How Crime Went Online, and the Cops Followed by Nate Anderson. Copyright © 2013 by Nate Anderson. With permission of the publisher, W.W. Norton & Company, Inc.
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