JOLT Digest

Court Suppresses Email Evidence in Bear Sterns Case
By Stuart K. Tubis – Edited by Jad Mills

U.S. v. Cioffi, et al., Case No. 08-CR-415 (FB) (E.D.N.Y. Oct. 26, 2009)
Slip Opinion (hosted by WSJ)

The Eastern District of New York granted defendant Matthew Tannin’s motion to suppress evidence obtained from his personal Gmail account. Ralph Cioffi and Matthew Tannin were charged with conspiracy, securities fraud and wire fraud in connection with their roles as Bear Sterns hedge fund managers. Prosecutors obtained a warrant to search Tannin’s personal Gmail account, but the warrant failed to specify what evidence could be seized or to what crimes the evidence must relate.  After some initial difficulty, Google delivered a copy of the email account to the Government. As the Wall Street Journal reported, one email contained a comment that funds Tannin managed could “blow up.” Tannin moved to suppress this evidence on the ground that it violated the Fourth Amendment.

District Judge Block held that the warrant was facially overbroad and thus violated the Fourth Amendment. The Court reasoned that because the warrant itself was not particular as to either the items to be seized or to a particular crime, and because the affidavit was not attached or incorporated into the warrant, the warrant was unconstitutional. The court also held that the warrant did not merit a “good faith” or “inevitable discovery” exception, largely because the executing officers should have known the warrant was overbroad.

The Wall Street Journal provides a brief overview of the case. The Eric Goldman Blog also provides a summary of the case. Orin Kerr of the Volokh Conspiracy criticizes the ruling, saying that the good faith exception should have been granted since the case law was not firmly established at the time of execution. (more…)

By Tyler Lacey

Federal Prosecutors Launch New Attack Against Online Gamblers in the United States

On June 9, the New York Times reported that federal prosecutors asked four American banks to freeze accounts containing money believed to be used for distributing winnings to online poker players. Wells Fargo, one of the contacted banks, received a court order requiring that the funds be frozen. Professor I. Nelson Rose of Whittier Law School described the move as “surprising” and as a “gamble” by the prosecutors. Professor Rose also said that it is unclear what laws apply to the seizure of individuals’ money.

Canadian Government Decides Not to Regulate Internet Video and Audio Broadcasts

Canadian radio and television broadcasters are required by the Canadian Radio-television and Telecommunications Commission (CRTC) to broadcast a minimum amount of Canadian content. On June 9, Ars Technica reported that the CRTC issued a report saying that although internet audio and video do count as “broadcasting” for the purposes of their regulatory schemes, they will retain a regulatory exemption from providing Canadian content. The CRTC’s decision, while currently supported by major providers of online audio and video such as Google, leaves open the possibility that the CRTC will impose future regulations.

Electronic Frontier Foundation Urges Court to Hold Email Protected Under the Fourth Amendment

On June 10, the Electronic Frontier Foundation (EFF) filed an amicus brief in the Sixth Circuit’s ongoing case Warshak v. United States. The brief argues that the Justice Department violated Warshak’s Fourth Amendment expectation of privacy in his email. The EFF reports that “the government acquired over 27,000 emails spanning over six months from Warshak’s email provider, all without probable cause.” The basis of EFF’s position is that email should receive the same protection against unlawful search and seizure as is given to phone calls, postal mail, and private papers kept at home.

Court Abused Discretion by Failing to Apply eBay Factors

On June 9, Patently-O reported that the Federal Circuit remanded a patent dispute case back to the district court because it failed to consider the eBay factors in its refusal to grant a permanent injunction to the patent holder. In the eBay case, the Supreme Court required a patentee seeking injunctive relief to “demonstrate (1) that it has suffered an irreparable injury; (2) that remedies available at law are inadequate to compensate for that injury; (3) that considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.”

Ninth Circuit Denies Rehearing En Banc in Quon v. Arch Wireless Text Message Privacy Case
By Debbie Rosenbaum — Edited by Christina Hayes

Quon v. Arch Wireless Operating Co.
Ninth Circuit, No. 07-55282
Order denying rehearing en banc
Opinion concurring in denial of rehearing en banc
Opinion dissenting from denial of rehearing en banc

On January 27, 2009, the Ninth Circuit denied rehearing en banc in Quon v. Arch Wireless, a case decided by a Ninth Circuit panel in June of 2008.  The Ninth Circuit panel held that the City of Ontario, California violated the Fourth Amendment when Ontario Police Department officials audited text messages sent by a department employee. The court also held that Arch Wireless, the city’s service provider, had violated the Stored Communications Act (“SCA”), 18 U.S.C. § 2701-2711, when it disclosed messages to individuals who were not the addressees or intended recipients.

Shaun Martin of the California Appellate Report investigates the politics of the concurring and dissenting opinions.  Martin points out that despite the similarities between Judges Wardlaw and Ikuta (both judges are UCLA Law School graduates, well-recognized women in Southern California, and both practiced for the firm of O’Melveny & Myers), the conflict evident in their opinions amounts to a series of “dueling bench slaps extraordinarie.”

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New Law Expands Government Surveillance Powers
By Daniel Ray — Edited by Sarah Sorscher

H.R. 6304 — FISA Amendments Act of 2008
Full Text of Enrolled Bill
Senate Vote Summary
GovTrack.us Summary

On July 9, the Senate passed H.R. 6034, the FISA Amendments Act of 2008, and President George W. Bush signed it into law the following day. The new law modifies the Foreign Intelligence Surveillance Act of 1978 (“FISA”) to expand (subject to certain new checks) the federal government’s surveillance powers and retroactively immunize telecommunication companies that cooperated with the warrantless wiretapping program brought to light in 2005.

The New York Times summarizes the politics surrounding the FISA issue, in which presumptive Democratic nominee for president Barack Obama’s “yea” vote attracted scorn from some Democrats.

The Electronic Frontier Foundation (PDF), a longtime opponent of President’s surveillance program, calls Section 202 an immunity “compromise” in name only.

Orin Kerr, writing at The Volokh Conspiracy, criticizes as “misleading” media coverage that ignores the law’s new procedural safeguards (as compared to last year’s less restrictive Protect America Act (“PAA”)).

On the issue of immunity, Charlie Reina (writing at the Huffington Post), regrets that the public will never know who was monitored or which companies cooperated with the original warrantless wiretapping requests.

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Ninth Circuit Applies Fourth Amendment to Text Messages at Work
By Anna Volftsun — Edited by Evie Breithaupt

Quon v. Arch Wireless Operating Company, Inc.
Ninth Circuit, June 18, 2008, No. 07-55282
Slip Opinion

On June 18, 2008, the Ninth Circuit held that the City of Ontario, California violated the Fourth Amendment when Ontario Police Department officials viewed text messages sent by a department employee. The court also held that Arch Wireless, the city’s service provider, had violated the Stored Communications Act (“SCA”), 18 U.S.C. § 2701-2711, when it disclosed messages to individuals who were not the addressees or intended recipients.

In late 2001, Sergeant Jeff Quon received a pager from his employer, the Ontario Police Department. The pagers’ wireless text-messaging service provider, Arch Wireless, had stipulated that the city was required to pay overage charges for text messages exceeding a set character limit. Quon paid the overage fee several times without further inquiry into the content of the messages until August 2002, when the Ontario police Chief Scharf moved to obtain transcripts of Quon’s text messages from a support specialist at Arch Wireless.

At least three department employees, including Quon’s immediate supervisor, reviewed the transcripts and read many of Quon’s personal messages, some of which were sexually explicit. Quon and several recipients of the messages brought suit in the District Court of Central California. They appealed the district court’s holding, arguing that Arch Wireless had violated the SCA. Quon also argued that the city violated his Fourth Amendment right to be free from unreasonable search and seizure, as well as his rights under the California Constitution.

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