Appealing in Nevada : Nevada Appellate Lawyer & Attorney : Tami D. Cowden : Nevada Supreme Court, Ninth Circuit Court of Appeals

"Smilin' Bob" must be really grinning today.

A victory for cyber privacy was won today in the Sixth Circuit’s ruling in Warshak v. U.S.       The Court upholds a district court’s preliminary injunction prohibiting the seizure of email communications without a warrant, or a subpoena issued with notice to the sender. The Court held “e-mail users maintain a reasonable expectation of privacy in the content e-mails that are stored  with, or sent or received through,  a commercial ISP.”

The case arose in the context of a federal investigation of an herbal supplement company, . Berkley Premium Nutraceuticals. The company is perhaps best known for its advertisements featuring “Smilin’ Bob,” whose happy face, the ads suggest, is evoked by the “natural male enhancement” offered by the company’s supplements.   

Federal investigators had searched emails obtained from Warshak’s ISP without a warrant, and without notice to Warshak, president of the company.  While the government failed to follow the procedure set forth in the statute strictly, the method used to obtain the emails pursuant to the Stored Communications Act, 18 U.S.C. § 2703 (SCA), which allows for seizure of emails without a warrant or notice to the user, if a court determines the emails may be relevant to an ongoing criminal investigation. The parties agreed that this standard fell short of probably cause.

The Court compared email communications to both sealed hard copy communications sent through the mail, and telephone calls, both of which carry an expectation of privacy.  The Court rejected the notion that because ISPs have the capability to access the contents of emails, there is no expectation of privacy.

The Sixth Circuit cited the Ninth Circuit’s recent opinion in U.S. v. Heckencamp, which upheld a reasonably expectation of privacy despite Heckencamp’s use of the university network, because the university had no blanketing monitoring system.

Of course, both Warshak and Heckencamp leave open the situation where there is a policy of monitoring of content. So check your user policies of your provider before assuming your email is private. Big brother may be watching – and may have company.

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In Brendlin v. California, the U.S. Supreme Court held that a passenger is seized by a traffic stop.  Because the passenger is seized, the passenger has standing to challenge the validity of the stop.  Here, the State of California conceded there were insufficient grounds to justify the stop

Writing for a unanimous court, Justice Souter noted that the typical passenger would not feel free to leave without permission while police are investigating, even if the traffic stop was solely instigating by the manner of driving.  A seizure requires actual submission. A passenger submits to the seizure by failing to leave the scene after the vehicle is halted.

The Court’s conclusion is consistent with the conclusion of the nine circuits, including the Ninth, to have addressed the issue.   The Court notes that while it overrules the California Supreme Court, nearly all other states to have addressed the issue have also determined that a passenger is seized by a traffic stop. Only Colorado and Washington had taken California’s view of the matter.

The Court noted that to hold that a passenger is not seized by a traffic stop would be “a powerful inventive to run the sort of  ‘roving patrols’ that would still violate the driver’s Fourth Amendment rights.”

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FBI agent’s infiltration of NAMBLA not unconstitutional

In U.S. v. Mayer, the Ninth Circuit rejected the claim an FBI agent’s undercover membership in the North American Many Boy/Love Association (NAMBLA) violated Mayer’s constitutional rights.   The agent maintained the membership for a number of years, gradually gaining the trust of other members, learning their names and predilections.  This knowledge enabled the agent to suggest to defendant a trip to Mexico where Mayer would be able to have a “special friend” provided to him.  The agent sent a link to a website with such offerings, without revealing, of course, that the website was a fake created by the FBI.  Mayer booked a trip, and traveled to San Diego, where he and others were arrested and charged with travel with intent to engage in illicit sexual conduct.   The Court rejected Mayer’s proposed agent provocateur doctrine, under which an agent could not infiltrate a first-amendment protected organization and provoke illegal conduct, noting that any constitutional violations that might arise already had adequate remedies. 

The captivating aspect of this opinion is the description of the agent’s progress in the organization, such as participating in a Christmas card program that sent holiday greetings to imprisoned pedophiles, and, ironically, serving on the privacy committee, for which he even wrote a policy statement. The agent also volunteered to host the 2005 NAMBLA conference.  Mayer’s arrest ended that volunteer position, and, sadly, the conference had to be canceled.    Mayer offered this example in support of his claims that the infiltration violated constitutional rights since it interfered with the organization’s activities.  The Court was slightly more impressed with this argument than with others made by Mayer, but only slightly.

As a fiction writer, I sometimes feel disheartened when I read cases like this.  I have a damn good imagination, but I could never have thought this up.  And if I had written a story like this, it would undoubtedly be rejected as implausible.

NAMBLA “U.S. v. Mayer”  “agent provocateur” “1^st amendment” “4th amendment” “5^th amendment”

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In Rogers v. County of San Joaquin, the Ninth Circuit held that removal of children from their home without a warrant where there was no risk of imminent bodily harm violated the 4^th amendment.   The children here suffered from bottle rot, and general neglect. The lack of imminent danger was borne out by the emergency room personnel classifying the visit as routine, and the social service agency’s only delay in responding to reports of neglect of the children. The Court reversed the district court’s grant of summary judgment to the social services provider, as well as the denial of summary judgment to the parents.

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The U.S. Supreme Court took a giant leap into the 21^st century today, issuing an opinion which included a citation to a URL, located on the court’ own website, where a video tape of the car chase in question in the opinion can be viewed in a RealPlayer video file.

The 8-1 decision in Scott v. Harris, authored by Justice Scalia, notes that ordinarily in an appeal of the grant of summary judgment, the Court would accept the Plaintiff’s version of events. However, the existence of the video eliminated he factual dispute, and the court makes he video available to prove it. Justice Breyer, in his concurring opinion, states,                "[b]ecause watching the video footage of the car chase made a difference to my own view of the case, I suggest that the interested reader take advantage of the link in the Court's opinion . . .  and watch it."

Oh - and the opinion also includes this straightforward rule: "A police officer's attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death."

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