I've written about law enforcement access to electronic communications, both on this blog and, more extensively, in this Administration of Justice Bulletin. One major issue is how and when law enforcement can obtain a suspect's email from the suspect's email provider. There are lots of wrinkles, but broadly, there's a federal statute called the Stored Communications Act (SCA), 18 U.S.C. § 2701 et seq., which generally has been viewed as governing this question. And the statute, in many cases, allows officers to obtain emails using a simple subpoena, or a court order issued on a showing of "reasonable grounds," i.e., less than probable cause. As I observed in the above-referenced Bulletin, there's room to wonder whether it is constitutional for law enforcement to access an individual's email without a search warrant issued on probable cause. In other words, one might ask whether the SCA violates the Fourth Amendment. The Sixth Circuit just became the first federal appellate court to answer that question. It did so emphatically, in an interesting case called United States v. Warshak, __ F.3d __ (6th Cir. 2010). The defendant ran the company that sold Enzyte, a “nutraceutical” claimed to enhance penis size and sexual performance. He was convicted of many federal crimes; the essence of the prosecution was that the defendant defrauded his customers to the tune of $250 million per year. Although completely irrelevant to the legal issue presented in this post, I can't resist highlighting a few of the facts of the scam. (1) Advertising [...]
Faculty Coordinators
