John Reinan
Star Tribune
A seller of "natural male enhancement" products sued after a fraud indictment based on evidence gleaned from his electronic mail.
That would include all of the Big Four e-mail providers -- Yahoo, AOL, Hotmail and Google -- that together hold e-mail accounts for 135 million Americans.
Twenty years ago, when only a relative handful of scientists and scholars had e-mail, Congress passed a law giving state and federal officials broad access to messages stored on the computers of e-mail providers.
Now that law, the Stored Communications Act of 1986, is being challenged in federal court in Ohio by Steven Warshak, a seller of "natural male enhancement" products who was indicted for mail fraud and money laundering after federal investigators sifted through thousands of his e-mails.
The government isn't saying it has unfettered access to e-mail. But e-mail users should not expect privacy when they allow an outside party to store their messages, prosecutors argue. In fact, many e-mail providers require their customers to sign agreements acknowledging that the provider may release customer information as required by law.
E-mail providers also routinely screen messages for spam, viruses and child pornography. That further undermines claims to the privacy of e-mail, government attorneys say.
Advocates for Internet privacy and civil liberties are watching the Warshak case closely. In their view, e-mail deserves the same protection as snail mail, which can't be opened by government agents without a search warrant.
"This points to a very scary future unless we fix it," said Kevin Bankston, an attorney with the San Francisco-based Electronic Frontier Foundation, which filed a brief in support of the challenge. "The average person expects that no one is going to read their e-mail except the person they send it to."
E-mail for 'Smiling Bob'
As the use of e-mail continues to grow, so do questions about how it can be sought as evidence in legal cases, criminal and civil. In 2000, for example, Northwest Airlines got permission to look for private e-mails stored in the home computers of flight attendants as part of its claim of illegal labor practices.
The legal challenge is being mounted by Warshak, a Cincinnati businessman who made a fortune selling Enzyte, a "male enhancement product" made of ginseng root, ginkgo biloba and horny goat weed.
Warshak pitched his product aggressively on TV with ads starring "Smiling Bob," a dorky suburbanite whose life takes a turn for the better after he uses Enzyte.
Warshak became the target of a federal investigation for mail fraud, money laundering and other crimes. During the investigation, agents obtained court orders allowing them to collect thousands of Warshak's e-mails from Yahoo and another e-mail provider. A court order requires a lesser burden of proof than a search warrant.
Warshak sued in federal court, claiming that the search of his e-mail violated the Fourth Amendment of the Constitution, which protects citizens against unreasonable searches and seizures.
In July, a U.S. district judge agreed, ruling that e-mails stored on the server of a commercial Internet service provider can't be read without a search warrant. The judge's order applies only in the Southern District of Ohio, where the case was filed.
The government appealed the decision to the U.S. Court of Appeals for the Sixth Circuit, which has yet to rule on the case. E-mail users are protected from overzealous investigators, the government argues, because a search of stored e-mail still requires a subpoena from a prosecutor or a court order from a judge.
Warshak's appeal attracted support from a number of quarters, including a brief filed by 15 law professors.
In September, Warshak and his company, Berkeley Premium Nutraceuticals, were indicted on 107 federal counts of conspiracy, money laundering and mail, wire and bank fraud.
A return to snail mail?
The case highlights how difficult it is for the law to keep up with technology. When the Stored Communications Act was passed, few Americans had e-mail, and e-mail operated differently than it does today, said Mike O'Connor, a St. Paul technology consultant.
"The actual technical architecture of the mail is different now," said O'Connor, who in the early '90s founded Gofast.net, one of Minnesota's first Internet service providers.
In the early days of e-mail, computer storage was limited and expensive, O'Connor said. E-mail providers didn't routinely store messages on their servers. Instead, recipients downloaded the e-mail to their own computers and opened it there. The e-mail was then deleted from the server to conserve space.
But as computer technology progressed, storage space grew cheap and plentiful. And as e-mail became more widespread, users wanted the ability to get their e-mail from any computer, O'Connor said. Parking the mail on a central server allowed them to access it from anywhere.
Although Americans have come to rely on corporate e-mail providers, they shouldn't be expected to give up their privacy in return, Bankston said.
"We're looking at a future in which almost all of our private papers are in the hands of third parties and not protected by the Fourth Amendment," Bankston said.
"I think it would be very backwards for the law to force us to use snail mail and phones, instead of the Internet, for our private communications," he said. "But that is the result if you follow the government's theory."
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