Sixth Circuit e-mail privacy case

The fraud case against Berkeley Premium Nutraceuticals might be the beginning of the end of a law that allows government agents to read e-mails without a search warrant., a Cincinnati.com article said yesterday.

The 6th. Circuit Court of Appeals here in Cincinnati, last Tuesday, upheld the 2008 criminal conviction of Berkeley's top executive, Steven Warshak, but also cast doubt on the way federal investigators obtained hundreds of corporate e-mails to build their case against him and other company officials. "It's significant," the article says, "because it declares for the first time that private e-mails are entitled to the same constitutional protection as letters, phone calls and other forms of communication, and, if it stands, would wipe out a large chunk of the Federal Stored Communications Act of 1986, which allows authorities to seek permission from a magistrate or judge to snoop into electronic communications instead of getting a search warrant." [ See U.S. v. Warshak ]

Citing the 1987 Supreme Court case Illinois v. Krull, the 6th. Circuit here in pertinence, said , "Warshak enjoyed a reasonable expectation of privacy in his emails vis-à-vis NuVox, his Internet Service Provider…Thus, government agents violated his Fourth Amendment rights by compelling NuVox to turn over the emails without first obtaining a warrant based on probable cause. However, because the agents relied in good faith on provisions of the Stored Communications Act, the exclusionary rule does not apply in this instance…"

"In Krull," the 6th Circuit said, "the Supreme Court noted that the exclusionary rule's purpose of deterring law enforcement officers from engaging in unconstitutional conduct would not be furthered by holding officers accountable for mistakes of the legislature. Thus, even if a statute is later found to be unconstitutional, an officer 'cannot be expected to question the judgment of the legislature.' However, an officer cannot 'be said to have acted in good-faith reliance upon a statute if its provisions are such that a reasonable officer should have known that the statute was unconstitutional.'" ( Illinois v. Krull, 480 U.S. 340, 355 )