Can authorities spy on your private e-mail?

7-12-2008 National:

Appeals court retains warrantless search in Berkeley case

A law that allows the government to read private e-mails without a warrant survived a court challenge Friday in Cincinnati, prompting one judge to accuse his colleagues of trampling civil rights.

The 9-5 decision by the U.S. 6th Circuit Court of Appeals set off a spirited debate among the court's judges over how to balance privacy rights with the needs of law enforcement in the Internet age.

The dissenting judges said the decision would have offended America's Founding Fathers, while the judges in the majority described their colleagues' reaction as "overwrought."

The court's ruling was a setback for Steven Warshak, who faces up to 20 years in prison for defrauding customers of his herbal supplement company, Berkeley Premium Nutraceuticals.

Warshak had argued that the fraud and money laundering charges against him should be thrown out because the government snooped in his e-mails for evidence without first obtaining a warrant.

A majority of the 6th Circuit judges said it was too early to consider Warshak's arguments and that he would have to wait to file an appeal until after he is sentenced in August.

The dissenting judges, however, said the evidence shows that the government conducted an unconstitutional search when it tapped into Warshak's e-mail accounts.

"While I am saddened, I am not surprised by today's ruling," Judge Boyce Martin wrote in the dissenting opinion. "It is but another step in the ongoing degradation of civil rights in the courts of this country."

Martin was joined in the dissent by Judges Martha Craig Daughtrey, Karen Nelson Moore, R. Guy Cole Jr. and Eric Clay.

Judge Jeffrey Sutton, writing for the majority, said the case simply is not ready, or "ripe," for the court to consider Warshak's constitutional claims.

He said the issues could be raised properly when Warshak appeals his conviction and sentence.

"The dissent's concern about the 'ongoing degradation of civil rights' seems a bit overwrought," Sutton wrote. "The dissent's concerns have almost nothing to do with this case."

Sutton was joined in the majority by Judges Danny Boggs, Alice Batchelder, Julia Smith Gibbons, John Rogers, Deborah Cook, David McKeague, Richard Griffin and Ronald Lee Gilman.

With the exception of Gilman, who was appointed by President Clinton, all of the majority judges were appointed by Republican presidents. The dissenters all were Democratic appointees.

The key issue in Warshak's case is whether the government misused the Stored Communications Act of 1986 when it got permission from a federal magistrate to read the e-mails.

The law allows authorities to seek permission from a magistrate or judge instead of getting a search warrant, as long as there are "reasonable grounds" to believe that the e-mails are relevant to a criminal investigation.

If they get permission, authorities then have 90 days before they must obtain a search warrant or disclose the snooping to the individual.

Warshak said the investigators went long past the 90-day time limit - at least a year - without getting permission to continue without a warrant. He also challenged the law itself, arguing that a search warrant approved by a judge is the only approach that passes constitutional muster.

A search warrant requires authorities to show that they have "probable cause" that a crime is being committed, a higher standard than the "reasonable grounds" requirement permitted under the Stored Communications Act.

"The government has no constitutional right to go through your private e-mails in secret without probable cause," Martin Weinberg, Warshak's attorney, said. He said such searches "erode the basic fabric of liberty in a computer age."

Government lawyers say the law has been used effectively and fairly for more than 20 years.

"We will continue to use every available legal means to investigate and prosecute wrongdoing, while cautiously guarding a potential defendant's legal rights," said Fred Alverson, spokesman for U.S. Attorney Greg Lockhart.

Weinberg described the ruling as a procedural decision and said he would make the same arguments when he appeals Warshak's conviction.

But Martin said the majority should have taken on the big constitutional issue now.

He said courts are quick to stand up for free speech or gun rights but seem hesitant to do the same when it comes to protecting citizens from illegal searches.

"Heaven forbid that we should intrude on the government's investigatory province and actually require it to abide by the mandates of the Bill of Rights," Martin wrote. ..News Source.. by Dan Horn