Reference no: EM133453398

Case Study: In 2010, Steven Warshak sued the U.S. government for violating his 4th Amendment rights. In 2006, Warshak had been charged with 112 counts of conspiracy to wire, mail, and bank fraud, making false statements to banks, conspiracy to commit money laundering, and a variety of other crimes. These crimes were related to the business practices of his company Berkley's, which was known for its product "Enzyte," a male enhancement supplement. The prosecution used thousands of emails to prove its case. The e-mails had been obtained from Warshak's Internet service provider. Warshak was convicted of the majority of charges, including fraud and money laundering, and sentenced to 25 years in prison. In addition, a forfeiture hearing was held, and the jury found that most of Warshak's assets had been obtained through his criminal activities. The judge ordered that Warshak pay a fine of $93,000, surrender $495 million in proceeds/money/judgement, and $45 million in money-laundering proceeds.

Warshak appealed his prison sentence and the forfeiture of his assets, and in 2010 his arguments were heard by the 6th Circuit Court of Appeals. Warshak argued that using e-mails obtained from his Internet service provider violated his 4th Amendment rights against unreasonable search and seizure. In Katz v. United States, the Supreme Court established a two-pronged test of the right to privacy: (1) a person has "exhibited an actual [subjective] expectation of privacy" and (2) "that the expectation be one that society is prepared to recognize as reasonable." The Katz decision had not been applied to digital communication, however, leaving much private information open to seizure by law enforcement. The 6th Circuit for the first time extended the right to privacy to e-mails stored with third parties. Despite the Court's decision that the government had violated Warshak's Fourth Amendment rights, it did not overturn his conviction based on the grounds that the law enforcement officers had acted in "good faith" because they believed that the e-mails were not protected by the Fourth Amendment.

Following the Warshak decision, Congressman Kevin Yoder introduced the Email Privacy Act that would amend the Electronic Communications Privacy Act of 1986 to - prohibit a provider of remote computing server or electronic communication service to the public from knowingly divulging to a governmental entity the contents of any communication that is in electronic storage or otherwise maintained by the provider, subject to exceptions.

Question: Imagine if the government collected all your e-mails, posts on Twitter, Facebook, and any other social media websites, and charged you with the crime of violating copyright law by sharing music files or downloading pirated software. What would you argue to defend yourself? Be sure to include your discussion of the pros and cons of expanding the Fourth Amendment to digital communications.