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UC Hastings Inter-Journal Writing Competition 2017

Inter-JournalWriting Competition

for Journal Membership

Competition Rules and Instructionswith Accompanying Information on UC Hastings’ Law Journals

START: May 11, 2017DEADLINE: May 23, 2017

Emailed by 5 p.m. PST

INTRODUCTION: Thank you for participating in the Inter-Journal Writing Competition. Each year, journal editors use the Competition to evaluate first-year candidates for journal membership during their second year of law school.

BE SURE TO REVIEW CAREFULLY THE ENCLOSED INFO FOR EACH JOURNAL.

The Competition is designed to assess these skills:(1) legal reasoning and analysis;(2) writing ability and style;(3) proper citation and formatting.

Each journal weighs these factors to varying levels in evaluating Competition entries. In addition, each journal may consider other criteria, such as grades or a personal statement.

For more information on the journals at UC Hastings, see pages 9 through 16 of this packet.

Although you have thirteen (13) days to complete your Competition entry, we estimate that it should take only four or five days to complete. However, please be aware that the issues presented are taken from areas of substantive law that are not included in the first-year curriculum. Please allow adequate time to familiarize yourself with these materials, and ONLY these materials.

Please read all of the instructions and rules before beginning.

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Table of ContentsIntroduction........................................................................................................................................................1Instructions — Read Very Carefully!.................................................................................................................3Writing Competition Rules.................................................................................................................................4Honor Code Memorandum.................................................................................................................................6Grades Release Form — Instructions.................................................................................................................7Scholarly Publications Grade Release Form......................................................................................................8More information about the journals..................................................................................................................9

Hastings Business Law Journal...........................................................................................................9Hastings Communications and Entertainment Law Journal...............................................................9Hastings Constitutional Law Quarterly...............................................................................................10Hastings International and Comparative Law Review........................................................................11Hastings Law Journal..........................................................................................................................12Hastings Law Journal Special Admissions Cover Sheet.....................................................................12Hastings Race and Poverty Law Journal.............................................................................................13Hastings Science and Technology Law Journal..................................................................................14Hastings Environmental Law Journal (formerly West-Northwest).....................................................15Hastings Women’s Law Journal..........................................................................................................16

Tech Edit Instructions.........................................................................................................................................17Tech Edit Assignment.........................................................................................................................................19The Facts.............................................................................................................................................................21Memo Writing Assignment................................................................................................................................23Research Materials..............................................................................................................................................24

88 S.Ct. 507.........................................................................................................................................26Statement of Elana Tyrangiel..........................................................................................29Lazette v. Kulmatycki....................................................................................................31In re A Warrant for All Content & Other Info..................................................................35United States v. Forrester...............................................................................................40631 F.3d 266.................................................................................................................44

For any questions or concerns regarding the Inter-Journal Writing Competition procedures or rules, email to [email protected].

Please do not consult anyone else or solicit their assistance, student or not, about any aspect of the completion and delivery of IJWC entries.

You received an Inter-Journal Writing Competition Number in your uchastings.edu email. You must identify yourself by your Competition Number only on all your entries in the Inter-Journal Writing Competition. To fail to do so is to risk disqualification.

Your Competition Number was emailed to you at your uchastings.edu account email account.

The journals are expected to begin extending invitations about the first of July 2017. The results of the Inter-Journal Writing Competition will be posted at http://www.uchastings.edu/academics/journals/index.html and will be emailed to all rising 2Ls.

Please respond to all the offers you receive, yes or no, by July 21, 2017, 5 p.m. Join one journal only.

All rules will be enforced, and any violation may result in disqualification.

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Instructions — Read Very Carefully!These instructions will guide you step-by-step through the Competition process.

Step 1. Read the Competition Rules

Read the enclosed Competition Rules very carefully. The Rules will be strictly enforced, and any deviation from the Rules may result in disqualification.

Step 2. Read the Materials

Read all of the Competition Facts and Materials in this packet, and then complete the assignment in compliance with the Rules.

Step 3. Prepare and Submit Your Entries

Identify yourself by Competition Number only. DO NOT INCLUDE YOUR NAME ON COMPETITION ENTRIES.

Using only your uchastings.edu email account, email entries to [email protected]. One email per journal.

Complete your Memorandum and Tech Editing Assignment in MS Word. Save your Memo and your Tech Edit as separate Word Docs. For your Tech Edit, be sure to follow the detailed instructions for preserving your anonymity on page [x]. Attach these two items and any Personal Statement (if required) into a SINGLE SEPARATE EMAIL for each individual journal. Then, using your uchastings.edu email account, send each email to [email protected] with one of the following appropriate SUBJECT LINES:

HBLJ Submission COMP # XXX CMT Submission COMP # XXX

CLQ Submission COMP # XXX HICLR Submission COMP # XXX

HLJ Submission COMP # XXX HRPLJ Submission COMP # XXX

HSTLJ Submission COMP # XXX HELJ Submission COMP # XXX

WLJ Submission COMP # XXX

Note: Replace the Xs with your Competition Number.

If a Personal Statement is required by a particular journal, please save it as a separate Word Doc while continuing to identify yourself ONLY by your Competition Number. Attach the Word Doc with your Memo and Tech Edit to a single email.

Using your uchastings.edu email account (No Gmail, no Hotmail, etc.), send all submission emails to: [email protected]

Step 4. Mail Signed Grade Release FormThis form authorizes the Records Office to distribute your first-year grades to the editors of journals that examine grades as part of their evaluation of entries. You need only submit one copy of this form, and must mail it to:

O’Brien Center for Scholarly PublicationsUC Hastings College of the Law200 McAllister St.San Francisco, CA 94102-4978

REMINDER: Use your uchastings.edu email account to email entries to [email protected].

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Writing Competition RulesRule 1. Follow the Rules to complete the Tech Edit portion of the competition. To complete the Memo, write an objective memorandum of law addressing the issues raised by the Facts and Materials. Do not discuss any other issues. Explore the Memo assignment objectively; however, you must also resolve each issue definitively, to the extent possible under the facts of this case. Consider the reader of your Memo to be very familiar with the Facts and Materials, so DO NOT INCLUDE a separate statement of facts in your Memo.

Rule 2. Use only the Facts and Materials provided in this packet and your Bluebook. While you are not required to use all of the enclosed sources in your Memo, you are not permitted to rely on any outside sources.

Do Not look up any of the cases on Lexis, Westlaw, or any other online or hardcopy database. Do Not work with anyone else, student or not, on the composition, proofreading, or completion of the Memo, or the

emailing of your entries. Do Not reveal to anyone, student or not, your Competition Number. Do Not reveal in your Personal Statement or any other materials your participation on or affinity with any UC

Hastings student organization. Do Not reveal in your Personal Statement or any other materials your participation on or affinity with any personal

or scholastic activity or information that may identify you. Do Not contact the journals directly. If you have questions or concerns, email only

[email protected].

You may NOT cite or otherwise make reference to any sources not contained in this packet. If a source in this packet (a “primary source”) makes reference to another source (a “secondary source”), you may not make direct reference to the secondary source unless the secondary source is also contained in this packet. You may make reference to the primary source and parenthetically indicate the secondary source, provided you are in full compliance with Bluebook.

You may NOT use, adopt, or rely on the reasoning, conclusion, or mode of analysis of any source not contained in this packet. This includes, but is not limited to, any knowledge you may have of this area of law. You are to rely only on the materials provided for your reasoning and analysis. You must read all of the enclosed Facts and Materials even if they seem familiar to you, or you are familiar with one of the issues involved. The materials have been specifically modified for the purposes of this Competition, and may or may not reflect the actual state of the law. Do not assume a case stands for a certain proposition just because it appears similar to another case you have encountered. Do not make presumptions about the facts or holding of a case. Assume the cases are presented in their entirety and were decided in the jurisdiction indicated.

You may only rely on the facts provided to you in this packet. Do NOT assume any facts not given to you. If you believe there is an ambiguity in the Facts and Materials which would affect your conclusion, discuss how your conclusion depends on the ambiguity. Do not, however, resolve the ambiguity by fabricating additional facts.

Rule 3. Formatting of the writing assignment, the Memo, must be in accordance with the following:

Six to eight (6-8) pages. There is no minimum number of pages. No footnotes or endnotes. Typeface must be 12 point ordinary Roman (Plain Text) or Underlined. This includes, but is not limited to, headings,

body text, citations and page numbers. Choice of font may be Courier, Courier New, Times New Roman, or other similar font. 8½ x 11 inch (standard letter size) pages for your document file. One (1) inch margins on all sides (left, right, top, and bottom). Left justification (a ragged right alignment). Double-spaced text. Headings and footers, if used, should be single-spaced. Your Competition Number must be at the top of the first page of your Memo, and nowhere else.

For any other formatting questions, please consult the Bluebook’s BLUE PAGES for practitioners and law clerks.

Rule 4. Citations. All citations must be formatted according to the BLUE PAGES for practitioners and law clerks (not the WHITE PAGES which will ONLY be used for the Tech Edit). The Bluebook is the only permissible outside source pursuant

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to Rule 2 above. Do not use any other source for citation format, including any citation references that may be contained in these materials. Do not rely on the citations as they appear in the sources (or even within cases) for accuracy. The citation formats in this packet were intentionally altered to test your citation skills.

Rule 5. Honor Code. You are not permitted to communicate with any other person, student or nonstudent, (with the exception of Tom McCarthy of Scholarly Publications) about any aspect of the Competition, the completion of the Memo, the Tech Edit, or the delivery of the entries, until midnight on May 23, 2017 – including, but not limited to, substance, organization, style, or form of the Memo or Tech Edit answers. Your entry must be entirely your own work product. No other person may review or revise your Memo or Tech Edit answers. Violation of this rule will be considered to be as serious as cheating on an examination and will subject a student to disciplinary action by the University. Revealing your Competition Number to any person, student or not, will be treated likewise. Please see the Honor Code Memorandum from the Associate Academic Dean for more information, on page 3.

Rule 6. In order to participate on a law journal, the Academic Regulations require that 2Ls have a minimum GPA of 2.20. Moot Court or LW&R are prerequisites.

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Honor Code MEMORANDUM from Associate Academic Dean Jeffrey LefstinDate: May 1, 2017To: Participants in Inter-Journal Writing Competition From: Jeffrey Lefstin, Associate Academic Dean Re: Honor Code for Inter-Journal Writing Competition

This Memo is intended to inform you of the policy of the College concerning the consequences of violating the Rules of the Inter-Journal Writing Competition.

The nine journals explicitly prohibit any participant in the Competition from talking with any other person about any aspect of the writing problem or the participant’s entry. By entering the Competition, each student agrees to work individually and to submit a product that reflects only that student’s efforts.

Violation of this rule will be considered to be as serious as cheating on an examination and will subject a student to disciplinary action pursuant to the Student Conduct and Discipline Regulations.1 Depending on the circumstances, various penalties may be imposed on any student found cheating. Expulsion and suspension are the most serious sanctions.2

Alternatively, a letter of reprimand may be placed in the student’s file summarizing the problem and findings. 3 This letter may be transmitted to the Committee of Bar Examiners for its review when it evaluates the character and fitness of an applicant for the Bar.

For more information, please consult the U.C. Hastings Academic Regulations: Student Conduct and Discipline sections 50.00-53.00.

1. See U.C. Hastings College of the Law, Academic Regulations (2015-2016): Student Conduct Code § 50.00 et seq., available at https://uchastings.edu/about/admin-offices/academic-dean/docs/AcadRegs-15-16.pdf. 2. Id. at § 52.00. 3. Id.

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Grade Release Form — InstructionsImmediately following this page is a Grade Release Form, which is designed to obtain the following information: (1) A summer address for all Inter-Journal Writing Competition participants; and (2) a release that will permit the Records Office to distribute your first-year grades and section rank to the editors in chief of journals that use grades as part of the evaluation of entries. You need to send only one copy of this form. One copy of the Grade Release Form must be mailed to:

O’Brien Center for Scholarly PublicationsUC Hastings College of the Law200 McAllister StreetSan Francisco, CA 94102-4978

All participants must complete the top half of the Grade Release Form (fill in your Competition Number and name and summer address). If you wish to release your grades to the journals that use grades as a membership criteria, you must complete and sign the bottom portion as well. Note that if you do not complete the bottom half of the form (the grade release), you will not be considered for a position on a journal based solely, or in part, on your grades. Those applicants who wish to be considered only through the Writing Competition need not sign the bottom portion, but must still submit the form with their address.

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Scholarly Publications Grade Release Form

One copy of this form must be completed and mailed to:O’Brien Center for Scholarly PublicationsUC Hastings College of the Law200 McAllister StreetSan Francisco, CA 94102-4978.

All Writing Competition entrants must complete the following:

Writing Competition # ______________________________

Name (Please print):________________________________________________________Last First Middle Initial

Address: _________________________________________________________________Number and street City ZIP

Grade Release FormAll Writing Competition entrants who wish to apply to the Hastings journals that review grades as part of their membership

selection criteria must complete this section.

Please read the following information before signing this form:

I, (print)______________________________________________, hereby give permission to the Hastings Records Office to release my class and section rank to the Editors in Chief of COMM/ENT, HICLR, HLJ, HWLJ, and STLJ, and any other UC Hastings law journals that consider grades as part of their criteria for membership.

I understand that this release applies only to the participant selection process of the above mentioned Scholarly Publications.

Signature and Date:_______________________________________________________________________________

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Hastings Business Law JournalJOURNAL’S GENERAL STATEMENT

Hastings Business Law Journal (“HBLJ”) is ranked within the top ten commercial law journals in the country and ahead of business law journals at N.Y.U., Northwestern, and Georgetown. Numerous state and federal court decisions have cited our articles, including the California, Delaware and Texas state supreme courts and the U.S. Supreme Court. Our articles have also been cited in more than 350 other academic articles. In addition, some of HBLJ’s past symposiums have featured prominent law professors, SEC officials, and general counsels from companies such as Apple and Google. Finally, our current alumni base includes partners at several of the American Lawyer Top 100 firms and in-house counsel at Facebook, Cisco, and various tech startups.

MEMBER SELECTION PROCESS

To be considered for a position on HBLJ, please submit the Inter-Journal Writing Competition (“IJWC”) materials and an optional personal statement. We will evaluate your application based on your IJWC submission, your grades, and the information you provide in your personal statement. Personal statements provide us with insight into your experience and personality. While your personal statement does not need to contain obvious “business experience,” it must explain your interest in HBLJ and in business law. The optional personal statement may not exceed 250 words. Remember to use your competition number, not your name, in all submissions to HBLJ.

DUTIES OF NEW MEMBERS

2L journal members are paramount to HBLJ’s success. As HBLJ publishes a high-quality product, your primary responsibilities will be reviewing sources and editing. 2L members may contribute to various HBLJ-related functions including: planning symposiums, assisting in article selections, and organizing alumni events. Each 2L will write a Note on a current business law topic of their choosing; and the best notes will be published. In addition to the scholastic endeavors, 2L members will have the opportunity to participate in both social and networking events with current and past HBLJ members, Hastings’ alum, and Bay Area business professionals.

Hastings Business Law Journal wishes you the best of luck in the Inter-Journal Writing Competition!

Hastings Communications & Entertainment Law JournalSUMMARY OF MEMBER SELECTION PROCESS

Second-year members are chosen through a weighing of performance in the Writing Competition and grades. We also provide students with the opportunity of submitting a statement of interest if they would like to. However, this is not mandatory. The statement of interest is intended to help the Comm/Ent Editorial Board decide between students who may have equal scores. Also, please DO NOT use your name for any of the documents required. We would like to keep this process as fair as possible.

JOURNAL’S GENERAL STATEMENT

Comm/Ent is the nation’s premier law journal dedicated to the scholarly publication of literature addressing the intellectual property, sports, communications, and entertainment industries. With an outstanding reputation among practitioners and academics, Comm/Ent is consistently ranked among the top five journals in the nation within our focus area. Our journal explores the important legal questions associated with the changing trends in communication and entertainment, and it has effectively done so since the journal’s inception in 1976.

Recent Comm/Ent articles have encompassed a vast array of legal issues relating to radio and television broadcasting, film, sports, labor, cable television, music recordings, copyrights, trademarks, patents, the First Amendment, satellite communications, computer technology, the Internet, advertising, telecommunications, and commercial speech.

Comm/Ent takes tremendous pride in producing an annual symposium. Our symposium attracts the leading practitioners and litigators in the fields of IP, communications, and entertainment law, and provides attendees with a fantastic opportunity to

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network. For example, a prominent commissioner of the Federal Communications Commission, Rachelle Chong, got her start as Comm/Ent’s former Editor-in-Chief.

As a Comm/Ent member, you will be essential to the success of the journal. Members’ responsibilities include: examining articles and student notes to ensure proper citations, making substantive and technical edits to pieces in preparation for publication, assist in planning the annual symposium, and generally supporting the senior editors at their request on various projects. Additionally, each member writes a “note” on a cutting-edge issue on the law within the scope of the journal’s focuses, and the best of these will be published in an upcoming issue.

Comm/Ent produces a high-quality product while maintaining a relaxed and flexible atmosphere for members. We are dedicated to making the second-year membership a useful, rewarding, and “entertaining” experience. Comm/Ent has developed a strong online presence that benefits all members, while providing the legal community with a new, useful service. We strongly encourage each member to contribute ideas, time, and their focus to the needs of the journal.

The Comm/Ent Editorial Board wishes you the best of luck in the Inter-Journal Writing Competition, and we hope to have you on our team next year.

Hastings Constitutional Law QuarterlySUMMARY OF MEMBER SELECTION PROCESS

Hastings Constitutional Law Quarterly (CLQ) is excited to invite rising 2Ls to apply who are interested in constitutional law issues, willing to work hard to produce a high-quality journal, and enjoy working on a diverse team.

Applicants to CLQ must complete the inter-journal write-on technical edit and writing assignment. CLQ will grade the components according to the established rubric and will pay particularly close attention to the persuasive use of legal authority, organization, flow, and clarity.

Applicants may also submit an optional 300-word statement. Applicants should succinctly describe their interest in constitutional law (based on lived experience, curiosity/passion for a topic, work experience, etc.). The optional statements will be graded separate from the write-on requirements and points earned from the statement will be added to your composite score.


CLQ is the country’s oldest scholarly publication devoted exclusively to constitutional law and is consistently ranked in the top ten for constitutional law journals in the United States. CLQ publishes four issues a year, with the primary goal of publishing innovative and timely articles exploring issues arising under federal and state constitutions. Associate Justice Stevens has cited to pieces of scholarship from CLQ on numerous occasions, including his partial dissent in Citizens United v. Federal Elections Commission, 558 U.S. 310 (2010).

In 2017-2018, CLQ endeavors to lead public and scholarly discourse in the constitutional concepts that have the potential to affect everyone in America during the Trump presidency. CLQ plans to hold events on presidential powers, the right to freedom of speech, immigration reform, healthcare, and states’ rights, to name a few. CLQ will also seek to raise student voices, such as through blog posts on Medium.com or by organizing cross dialogue with members from multiple student groups, such as the Federalist Society, American Constitution Society, and National Lawyers Guild.

Second-year members will primarily serve as Staff Editors, contributing to the vital function of editing pieces of scholarship for each issue of the journal. Staff Editors will also be mentored by a 3L Senior Editor as they draft a law review note, presenting a novel legal argument on a constitutional topic of their choosing. Second-year members will also have opportunities to be a part of affinity groups on current topics of interest in the public sphere (e.g., Immigration, Freedom of

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the Press, etc.), attend CLQ talks and panel discussions, and social events with alumni and community leaders.

We look forward to welcoming you to the CLQ family!

Hastings Environmental Law Journal(formerly Hastings West-Northwest Journal of Environmental Law and Policy)

INTER-JOURNAL WRITING COMPETITION ENTRY INSTRUCTIONS

Hastings Environmental Law Journal (HELJ) has two options for students applying:

1) Email your Writing Competition Entry and your Mandatory Personal Statement as per the IJWC Rules.

2) Email a writing sample, the technical edit portion of the Writing Competition Entry, and the Mandatory Personal Statement as per the IJWC Rules. The writing sample may be an LWR memo or previous research paper.

For both options, do not write your name anywhere on your entry or personal statement.

HELJ will grant a 10-day extension of the Competition deadline for good cause; email such requests to [email protected] in advance of the IJWC deadline May 23, 2017.

MANDATORY PERSONAL STATEMENT

The personal statement should describe why you are interested in joining an environmental law journal, any experience you may have had with environmental issues, and any work done on scholarly publications in the past. Experience with environmental issues can only help in the selection process, but is not required. All that is necessary is strong interest and dedication. Maximum length is one to two pages.

HELJ actively seeks to maintain a high level of diversity in its membership. Candidates who have overcome significant disadvantage may also describe the nature of that disadvantage and relevant experience or perspective gained thereby.

SELECTION PROCESS

GPA is given minimal consideration beyond the 2.2 minimum.

Quality of writing and degree of interest demonstrated in the personal statement will be important selection criteria. However, serious effort and quality in the completion of the memorandum portion of the writing competition is required.

The two primary selection criteria for HELJ members are writing ability (including composition, editing and Bluebooking skills) and an interest in the broad topical area of environmental law. The required personal statement is an opportunity to express your reasons for wanting to be a HELJ member and is given considerable weight. Beyond a 2.2 minimum GPA requirement, HELJ does not take grades into account. The environmental statutory class is not a prerequisite for joining our journal. All those who have any interest in HELJ are encouraged to apply.


HELJ is in the process of transitioning from West-Northwest Journal of Environmental Law and Policy. The new direction of HELJ will continue the tradition of creating a legal forum for both academics and practitioners in areas of environmental law and policy, but will depart from the previous regional concentration that was inherent to West-Northwest.

With a broader focus, HELJ will be home to all aspects of environmental policy and legal issues, and will focus on scholarship regarding the most current issues from across the private, public, and nonprofit sectors. This journal will focus on creating a community of environmental scholars here at Hastings, and connecting them with the greater environmental community beyond. With articles and essays from a range of authors, including practicing attorneys, policy-makers, law students and professors, resource managers, scientists, citizen groups, and activists, HELJ will lead the way in identifying the most problematic issues in environmental law and policy and creating innovative solutions.

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EVENTS

HELJ will host events periodically through the year. Past events have included several symposiums: “Surviving Climate Change: Adaptation and Innovation,” “Smart Growth: How Smart Is It?,” “Environmental Audits: Privileged Information or Privileged Violations?,” “Beyond Takings: Pragmatic Solutions for Resolving the Conflicts Between Property Rights,” and “Environmental Regulations and Adaptive Management and Market Incentives: Tools for the Next Millennium.” The coming year will focus more on creating and implementing smaller, more frequent events that connect Hastings students with the greater environment community to provide for targeted networking opportunities.

The HELJ Editorial Board wishes you the best of luck in the Inter-Journal Writing Competition.

Hastings International and Comparative Law ReviewPERSONAL STATEMENT [OPTIONAL]

Because Hastings International and Comparative Law Review (HICLR) has a particular focus, we seek candidates with an inter-national interest or background. While international experience is not required, we do consider whether a candidate has an interest in international issues and concerns. You may choose to submit a personal statement describing those experiences that are relevant to your international interests and/or what you hope to contribute to HICLR. Please write a minimum of 1 double spaced page, and submit your personal statement with your Writing Competition Number only.

SELECTION PROCESS

HICLR selects new members based on: (1) performance in the writing competition, (2) first year grades (including LW&R), and, optionally, (3) the personal statement.

Note: HICLR does not require any international course or work experience, nor does it require members to take any international or comparative courses.


Founded in 1976, HICLR is one of the few law reviews devoted exclusively to the discussion of contemporary original ideas pertaining to international and comparative law.

International law transcends national boundaries and governs relations among public and private international actors. Comparative law is the comparison of legal systems. These fields include: international trade and business transactions; international litigation; politics; treaties; international institutions such as the UN and WTO; intellectual property; immigration; human rights; environment; criminal law and procedure; tax policies; ethics and labor relations.

HICLR staff members will receive significant training and gain experience in all areas of the journal — selecting and editing articles, essays, and notes for publication; technical production and work with the authors and publishers; and planning and execution of our annual Symposium. Networking with HICLR alumni, international scholars and practitioners will also be available.

HICLR seeks members who will bring unique perspectives based upon experiences abroad or strong interests in international issues. HICLR members will learn from the editors and from one another throughout the year. In addition to publishing a high quality law review, and all the hard work and creativity attendant thereto, members will have fun and make career connections. With social and networking events throughout the year, being a HICLR member will mean a well-rounded journal experience that includes training, teambuilding, and professional development through Hastings alumni.

Members will also write a note of publishable quality on an inter-national or comparative law topic, under the guidance of a 3L mentor. One advantage to writing a note in comparative law is that it can concern any substantive field of law. The journal is committed to working with every member to produce excellent, relevant, publishable articles; HICLR publishes as many eligible member notes as possible, giving HICLR staff the highest probability of publication. This is an excellent opportunity to hone one’s writing skills and publish work in an internationally circulated and cited journal.

The HICLR Editorial Board wishes you the best of luck in the Inter-Journal Writing Competition.

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Hastings Law JournalSELECTION PROCESS

To be eligible to join Hastings Law Journal (HLJ), students must submit a writing competition application.

Invitations will be extended according to the following allocation estimates:

1) The top five students from each section are invited to join on the basis of their GPA.*2) Twenty students are invited on the basis of their writing competition scores.3) Sixteen students are invited on the basis of a composite of their writing competition scores and their GPA.4) Students may be invited through the Intellectual Diversity Program, described below.

*Please note that a student invited based on GPA must still submit a writing competition application.


Since 1949, HLJ has published scholarly articles, essays, and student Notes on a broad range of legal topics. With close to ninety members, HLJ publishes six issues each year, reaching a large domestic and international audience. HLJ works with legal scholars nationwide, and received the honor of being ranked the No. 2 Law Journal in the country, as voted by authors during the 2014-2015 year. Here at home, UC Hastings awarded HLJ “Student Organization of the Year” for the 2014-2015 membership.

In addition to producing scholarly legal publications, HLJ hosts two symposiums each year focused on cutting-edge legal issues, provides ample networking opportunities to socialize with decades of HLJ alumni, offers job search assistance, and provides resources for coursework and bar preparation to its members. Although HLJ members dedicate an appreciable amount of time and effort to the Journal, membership is not all work and no play. HLJ hosts a variety of social events for members throughout the year. For example, the Journal members attended HLJ’s annual Giants game, celebrated multiple Issue Release Parties hosted at local SF venues by HLJ, cheered on Golden State in the Skyroom at the Warriors Watch Party, engaged in a little friendly competition through HLJ’s Fantasy Football League, and drafted brackets for March Madness and The Bachelor.

Second-year members contribute to the Journal in a variety of areas, including editing articles, Notes, and SCOCAblog, technical production of legal works ready for publication, and in preparation and execution of Symposia and other alumni events.

One of the most challenging and satisfying aspects of second-year membership is the completion of a student Note with the opportunity for publication. What is a Note you ask? A student Note is a piece of legal scholarship similar to the law review articles authored by professors and other legal professionals. Each second-year member investigates an area of interest in the law, selects a novel topic on a developing issue in that area, and with the assistance of a the Journal’s Notes staff and a third-year mentor, the second-year member refines their topic to compose a written work of publishable quality. One of the unique things about HLJ is that students are in no way limited with respect to what topic they choose to write on. HLJ publishes works in a wide variety of legal fields, extending its reach to new audiences, and further diversifying the Journal. Therefore, students are very much encouraged to choose any area of law they feel passionate about.

Thank you for your interest, HLJ wishes you the best of luck in the Inter-Journal Writing Competition!

Hasting Law Journal – Special AdmissionsPURPOSE OF THE SPECIAL ADMISSIONS PROGRAM

The HLJ Special Admissions Program recognizes the great individual effort required to overcome economic and social disadvantage. The purpose of the Special Admissions Program is to increase interest in HLJ among those who have

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effectively been denied participation in the past. HLJ also seeks to diversify the membership of HLJ and broaden its spectrum of perspectives on legal scholarship through the program.

INSTRUCTIONS

To be considered for HLJ membership through its Special Admissions, please type your answers in MS Word, and limit your answers to three (3) double-spaced, typed pages or 750 words; then COPY AND PASTE below your memorandum email entry to HLJ.

NOTE: Special Admissions Program applications are separate and distinct from the general Competition; you are required to fulfill each of the general Competition and the Special Admissions Program applications separately while still using the same written entry. Include the Special Admissions Application with your general Competition application, but do not attach the Special Admissions Essay to the Competition entry.

SPECIAL ADMISSIONS ESSAY

INSTRUCTIONS: Please read the following eleven (11) questions, and consider carefully only those that apply to you. In an essay format, use your answers to those questions to illustrate why your particular set of experiences makes you an excellent candidate for a staff editor position with HLJ.

1. Identify and describe the community(ies) in which you resided from birth to age of college entry.2. What was (were) the occupation(s) of the person(s) who raised you? Please provide description if necessary.3. What was (were) the educational background(s) of the person(s) who raised you?4. Who were the members of your household from the time of your birth to age of college entry? Please include

extended family and others.5. Describe your early education experiences. Please include elementary and junior high school.6. Describe the financial situation of the family in which you were raised, from birth to age of college entry. Please

include sources of income, income estimates, number of wage earners and number of dependents, and any unusual expenses.

7. Were you employed prior to college? Please indicate where, how, and the number of hours worked.8. Were you employed during college? Please indicate where, how, and the number of hours worked.9. Please list your source(s) of financial support in college by approximate percentage:

Family_______ Employment _______ Loans _______ Grants / Scholarships ________ Other Assistance ________

10. Did you have to work during your first year of law school?

11. What was your occupation before entering law school?

Hastings Race and Poverty Law JournalREQUIRED PERSONAL STATEMENT

Please respond to Question 1 and answer at least 2 of the other 8 questions. All questions should be answered in a narrative format. Your Personal Statement will be evaluated based on the substance of your answers. Our purpose in having the “Personal Statement” component of the application is so that we understand the reasons for your interest in the Hastings Race and Poverty Law Journal (HRPLJ), and so you can identify and describe ways in which you hope to shape the dialogue and mission of the journal. Please limit your response to three (3) to five (5) double-spaced pages or 750 to 1,000 words.

1. MANDATORY: Please explain your reasons for applying to HRPLJ, and briefly describe your vision for the Journal.

2. What topics within the scope of race and poverty do you hope the Journal addresses through its publication, events, and/or community activities, and how do you plan to make these become a reality?

3. As a member, what do you see your role being on this Journal? What would you like to achieve as part of this Journal?

4. HRPLJ prides itself on being “more than just a Journal.” What steps would you take to achieve a balance between editing for the Journal’s publication and participating in the active side of HRPLJ?

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5. How do you define “social justice?” Please give a full description of your activities in the past that contributed to issues of social justice. (Please go beyond reiterating your resume.)

6. How do you plan to use your knowledge, skills, and experience to contribute to the mission of the Journal? (We encourage you to discuss any past work or volunteer experience in the public interest sector.)

7. What are your goals after law school, and how does HRPLJ help you to achieve those goals?

8. Please provide additional information about any personal experiences you think we should know and how it is relevant to HRPLJ.

SELECTION PROCESS

GPA is given minimal consideration beyond the 2.2 minimum requirement. Your degree of interest as articulated in the Personal Statement is our primary consideration for selection to the Hastings Race and Poverty Law Journal. We will also look to past experience in public interest activities as evidenced by your Personal Statement. Finally, we weigh the quality of your writing as exhibited in the writing competition memorandum and editing assignments.

Thank you for applying to the Hastings Race and Poverty Law Journal. We appreciate your interest in our Journal and look forward to reviewing your application. HRPLJ embraces diversity in its various forms, including race, socioeconomic status, gender, sexual orientation, ability, and religion.


Hastings Race and Poverty Law Journal is dedicated to promoting and inspiring discourse in the legal community regarding issues of race, poverty, social justice and the law. This Journal is committed to addressing disparities in the legal system. We create an avenue for compelling dialogue on the subject of the growing marginalization of racial minorities and the economically disadvantaged. It is our hope that the legal theories addressed in this Journal will prove useful in remedying the structural inequalities facing our communities.

In addition to publishing two issues annually, Hastings Race and Poverty Law Journal hosts a number of dynamic panels and symposia on such topics as “‘What’s the G?:’ Gentrification and the Myth of Fair Housing,” and “21st Century Civil Rights: Community Empowerment and Participation,” bringing to Hastings such speakers as Brendon Woods, Alameda County Public Defender, Monica Ramirez, Special Assistant Attorney General with the California Department of Justice, Cephus “Uncle Bobby” Johnson, Founder of the Love Not Blood Campaign, and Jane Kim, Supervisor for San Francisco District 6.

The HRPLJ Editorial Board wishes you the best of luck in the Inter-Journal Writing Competition.

Hastings Science and Technology Law JournalGENERAL STATEMENT

The Hastings Science & Technology Law Journal (STLJ) is a multidisciplinary journal created to enrich the discourse at the nexus of science, technology, and the law. Specifically, STLJ focuses on the exciting legal issues surrounding startups, intellectual property, data privacy, biotechnology, clean technology, and health policy, while exploring the implications of technological advances on traditional legal fields, such as contracts, antitrust, and tax.

Partnered with the Institute for Innovation Law, STLJ publishes twice a year. Recent articles have discussed the publicity rights of American astronauts, new approaches to worker classification in an on-demand economy, ANDA reverse payments and the post-Actavis landscape, and software innovation in a patent assertion entity world.

This year, STLJ co-hosted a symposium entitled, “Programming the Law: Privacy, Security, and Innovation” featuring panelists from LinkedIn, Facebook, and the Federal Trade Commission. STLJ also regularly collaborates with on-campus organizations such as the Startup Legal Garage, and the Hastings Intellectual Property Association.

DUTIES AND RESPONSIBILITIES OF STLJ 2L MEMBERS

2L members are an important part of our team. As a Staff Editor, 2Ls will have the opportunity to participate in all aspects of production including: Planning our annual symposium, editing articles, planning social events, and assisting in the acquisition of new articles. 2Ls will also have the opportunity to write a “Note,” which may be selected for publication.

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INTER-JOURNAL WRITING COMPETITION ENTRY INSTRUCTIONS

Applicants to STLJ must submit the following:

1. Inter-Journal Writing Competition Memo2. Inter-Journal Writing Competition Edits3. OPTIONAL Personal Statement

· Format: Times New Roman, double-spaced, one-inch margins, two pages maximum or 500 words. Include your writing competition number on the upper right corner of all pages.

· Instructions: Please describe why you want to be on STLJ. Appropriate topics include educational background, work experience, personal interests, or career goals related to the fields of science or technology.

Please note that a science background is NOT required for selection. We are interested in applicants who demonstrate sound writing skills and a keen interest in our journal’s subject matter. You are encouraged to convey such interests in a personal statement.

Hastings Science & Technology Law Journal looks forward to reviewing your entry! We wish you the best of luck.

Hastings Women’s Law JournalINTER-JOURNAL WRITING COMPETITION ENTRY INSTRUCTIONS

Please submit: Your competition memo, editing assignment, and a short personal statement, no more than one paragraph/ 250 words, on why you wish to join Hastings Women’s Law Journal (HWLJ) in a single MS Word document attached to an email sent to [email protected].

WLJ MISSION STATEMENT

Since 1989, the Hastings Women’s Law Journal has provided a forum for voices outside the traditional scope of legal academic scholarship. We offer and maintain an inclusive space for feminism, race theory, queer theory, multiculturalism, animal rights, disability rights, language rights, international human rights, children’s rights, criminal defendants’ rights, victims' rights, criminal justice reform, among others.

This perspective embraces difference and celebrates diversity. HWLJ enhances the school’s academic diversity and contributes to scholarly thought by publishing articles and student notes that present a critical perspective of traditional legal discourse. We strongly believe that the law is a solution for the ills of the human condition, not merely a means of gaining and preserving privilege and position. To that end, HWLJ is a progressive law journal that offers women and men the opportunity to work on provocative legal issues through a “traditional” journal experience.

COMMITTEES:

HWLJ is comprised of various committees on which members serve. This helps members get more involved with the day-to-day running of the journal and allows for more interaction with various members. The hands-on experience cultivates leadership skills and helps members determine what editorial board roles they will take on the following year.

COMMUNITY:

HWLJ hosts a variety of informal get-togethers and events throughout the year, providing opportunities for the exchange of thoughts and ideas. In addition to our social events, we also provide our members with ample networking opportunities by holding special panels and giving them an opportunity to participate in local community activities and volunteer work. We welcome new members of all backgrounds to participate on this high-caliber journal, used by academics and practitioners alike, to advance provocative and contemporary legal scholarship.

Hastings Women’s Law Journal wishes you the best of luck in the Inter-Journal Writing Competition.

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TECH EDIT INSTRUCTIONSWelcome to the editing portion of the Inter-Journal Writing Competition. You will edit a section from a hypothetical law review article. Please read these instructions very carefully, as failure to do so may make you ineligible for consideration.

% You are required to make both substantive edits (spelling and grammar edits within the body of the article and the text within footnotes) and technical edits (Bluebook edits to the footnotes).

% The Bluebook edits must be in accordance with the Bluebook’s WHITE PAGES (NOT the Practitioner’s BLUE PAGES found in the front of the Bluebook).

% The only permissible source you may use is the Bluebook.% Do not rely on the sources from the writing assignment for citation formatting help. These sources were

intentionally altered to test your citation skills.

% You may either complete the editing assignment in Microsoft Word using track changes, or handwrite all edits. Regardless, you must ensure that your identity remains anonymous.

% If you choose to complete the editing assignment through Microsoft Word, make sure to remove your name from the comment bubbles. By default, the track changes will display your name.

% Please see the instructions on the following page on “How to anonymously use track changes in Microsoft Word” for further guidance.

% Failure to remain anonymous may make you ineligible for consideration. % If you choose to handwrite the editing assignment, you must scan and convert the handwritten document

into a PDF when you are finished editing. Your handwriting must be legible to be considered.

% Title the editing assignment: EDITING_COMPXXX, replacing XXX with your competition number (i.e. EDITING_COMP123 if your assigned competition number is 123).

% Do not include your name in the title of your saved tech edit assignment.

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How to anonymously use track changes in Microsoft Word: % Word Mac 2011:

% To delete your name from the comment bubble in Microsoft Word, go to Word! Preferences! under “Output and Sharing,” click “Track Changes”! under “Balloons,” unclick the “Include review, time stamp, and action buttons” option.

% Word 2007: % To change the reviewer’s name! click the “Review” tab! Click the button labeled “Track Changes” On the

drop-down menu that appears, click “Change User Name”! Change the name in the field marked “User name” and change the initials in the field marked “Initials.” You can use an anonymous name or simply write in your competition number! click “Ok.”

% If neither of these instructions work: % Google “how to remove personal information in Microsoft Word track changes” and find instructions that

do work.

How to change font to small caps:% To change font to small caps, highlight the text you wish to alter, go to “Format” > “Font” and under “Effects”

check the box that says “Small caps” and click “Ok.” If for some reason you are unable to locate the “Small caps” feature, highlight the text in yellow that you believe should be in small caps. If you’re completing the editing portion by hand, indicate the text you believe should be in small caps.

FINAL CHECKLIST

Remove your name from Microsoft Word track change bubbles Do not include your name in the title of the document Title the editing assignment: EDITING_COMPXXX, replacing XXX with your competition number (i.e.

EDITING_COMP123 if your assigned competition number is 123) Upload completed tech edit portion

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TECH EDIT ASSIGNMENTI. Acqui-hire Transactions Should Not be Afforded the Business Judgment Rule by the Courts in Shareholder Suits.

The shortage of engineers in Silicon Valley is given rise to “acqui-hires”, which is the practice of purchasing a company for the soul purpose of acquiring it’s talent rather than the product of the firm.1 Startups are being snapped up left and right by the likes of Google, Facebook, etc., to poach the employees2 These transactions are ripe for dispute as there is a potential conflict of interest between the fiduciaries of the startups and its shareholders.3 Usually the acquiring company pays only fair market value for the startups.4 The purchase price does not include a control premium for the startup because it is reflected in the retention bonuses that are promised to the employees in order to retain them after the acquisition i.e. acqui-hire them. Thus, here lies the conflict of interest, with the heads of the startups ready to accept their large bonuses without thinking of the investors will essentially get nothing out of this deal.5 The law disallow Board’s with a vested interest to make these kinds of decisions.6 Conflicts of this sort are not new, but this hybrid type of acquisition poses new hurdles.7 Many courts and legal scholars are questioning of what standard of review should be applied in a shareholder suit challenging the transaction8

The best approach would be for courts to scrutinize these deals under intermediate review following the standard set forth in Revlon, Inc. v. MacAndrews & Forbes holdings, inc.9 There the court held that “when the break-up of a corporation is inevitable, the duty of the corporations board of directors change from maintaining the company as a viable corporate entity to maximizing the shareholders’ benefit when the company is eventually and inevitably sold.”10 When an acqui-hire transaction is challenged the court should use the Revlon intermediate review and ask if the fiduciaries of the startup took appropriate steps to maximize shareholders value.11 Some scholars have suggested that if this standard is not applied, it could have a domino effect for other small businesses, which would substantially hurt our economy12 Therefore, not only do we avoid that, but applying this standard would have the dual effect of keeping the startup’s fiduciaries in the face of a large pay out as well as pressuring that the acquiring company to pay more.13

(Footnotes)1. Grouper, DAISY, Are acqui-Hire’s hurting Competition? 57 Seattle University Law Review, 234, 269 (2013)

2. See Walter Rohe, Erasing Competition One Acquisition at a Time, 43 Hofstra Law Review 351, 361–64 (2014). (Arguing that companies are coming up with creative ways to eliminate competitors in the marketplace). See, Quinn v. Greenfield and Brothers, Inc., 753 F3d 560 (5th Circuit 2013).

3. SEE, eg., Sabrina Dasani, OPINION., Legal Barriers to Acqui-hires, Jun. 14, 2011, New York Times, at A11.

4. See, e.g., Carlos v. Brady, 587 AD. 2D 445 (App. Div. 2003); Newman v. Dawn Management, 764 AD. 2D 445 (App. Div. 2005); Solomon v. Wheels Incorporated. 2D 657 (App. Div. 2010).

5. Conflicts of interests in small businesses and startups, Iowa School, 11 November 2014, Jane Doe, http://coi.research.iowa.edu/implications-involvement-start-companies

6. Del. Code Ann. title 80, § 8888 (Del. 1988); Del. Code Ann. title 30 § 42 (Del. 1996).

7. Cruz, Thom, What’s Up with Revlon?, “Wall St. J., Jan. 30, 1985, at B20.; cf. L’Oreal SA v. MAC Cosmetics, (Del. 1992), 702 A.3d 21 at 22; see Revlon v. MacAndrews & Forbes Holdings, Inc., 506 A.2d 173, pg. 182 (Del. 1985).

8. Cable v. Crawford, 2016 WL 5509302, No. B389212, at *3 (Cal. App. Ct. February 19, 2016).

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9. Stephen Holt, The Employee Illusion: Bluth Buys Builders, BOB LOBLAW’S LAW BLOG,http://www.bobloblawslawblog.net/ratherbedeadincathanaliveinaz/articles/63hdks9hiu3ndgb33 (last visited May 26, 2013).

10. Supra note 7 Revlon

11. Purchasing the Right to Pay People, Stooge, Ebenezer A., 216 (Jacob Farley et. al editors, 40th edition 1862).

12. Dying Valley?: Silicon Valley in the Face of Aqui-hire (forthcoming Nov. 2016) 112 Stanford Law Review 12, Dan Ell

13. Carlos 587 A.D.

TECHNICAL EDIT REPORT

Please use the chart below to list your changes to each footnote and what, if any, Bluebook rule you used to do so.

Please feel free to add as many rows as necessary to complete the assignment.

FN # Original Altered BB Rule

- - - - - END TECHNICAL EDIT ASSIGNMENT - - - - -

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THE FACTSBoogle, Inc. (“Boogle”) is an established technology mega-corporation, which provides email (“Boogiemail”) and

various other Internet services to its users. Boogle was founded in San Francisco in 1998 as the Internet began to boom. In the past few years, massive conglomerates and small tech start-ups alike have joined the movement to promote a culture of transparency with respect to data processing and collection practices, and responses to requests for disclosure of information from the government.

Boogle prides itself on the company’s commitment to protecting their users’ privacy rights. Because of the vast amount of discretion electronic communication services – such as Boogle – have in deciding whether to comply with such requests, the privacy team at Boogle considers each case at length before making any decisions. Each year Boogle publishes a Transparency Report with the number of information requests received from government entities worldwide. Typically these requests for disclosure of account records and other information, or requests for contents of communications, are in connection with criminal investigations. The latest report (from 2015) includes the number of government and non-government requests received and shows that Boogle responded to only 5% of records requests, and 1% of requests for content.

Tim, a longtime user of Boogle, takes full advantage of the privacy protection Boogle offers. After many hours of surfing Gregslist.com for housing in San Francisco, Tim becomes increasingly frustrated. As the frustration surmounts, Tim decides he wants to forget about the impossibility of finding housing and try something new and exciting. He stumbles across an advertisement for an “8 ball” (approx. 3.5 grams) of cocaine and immediately decides he wants to purchase some. Being that this is Tim’s first time buying and using cocaine, he decides to ask the seller about the product. The following conversation ensues:

Tim ([email protected]): To whom it may concern – I saw your ad on Gregslist.com for an “8 ball” of cocaine. I’m interested in purchasing your product, however, before I commit, would you mind telling me more about the quality guarantee of your product? P.s. I am not a cop.

Seller ([email protected]): tim this shiz is fire mang! aint no betta powda than tha slopes u’ll be skiin’ on when u ayo 4 this yayo breh

Tim ([email protected]): Wow! Sounds like you have some really amazing coke. I guess it’s time to take the plunge. I also wanted to know more about the source of your product? This is my first time and I’m a little nervous. I can come pick it up tomorrow. Will you be charging $95 as advertised?

Seller ([email protected]): man all u gotta kno is that its from tha homie j lee, hes tha homie from tha way! but dis has gotta go down today breh. i need 95 bills in cash-- i’ll even make it 92 for you G!

Tim ([email protected]): Alrighty then, I could meet you in 2 hours time, can you please advise where to go? Man, I am so excited “G”!

Seller ([email protected]): dope dude. got tha information and i’ll get to tha spot. meet @ corner of McCalister & Fillmo. i got my red chuck baylors on.

Tim, being so excited about his cocaine adventure, completely misses an email from Boogle updating him on their new Privacy Policy. Boogle’s updated policy explains its new practice of sharing information with government agencies. The new policy reads:

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We will share personal information with law enforcement, private companies, organizations, or individuals outside of Boogle if we have a good-faith belief that access, use, preservation or disclosure of the information is reasonably necessary to:

Meet any applicable law, regulation, legal process or enforceable governmental request Enforce applicable Terms of Service, including investigation of potential violations Detect, prevent, or otherwise address fraud, security or technical issues Protect against harm to the rights, property or safety of Boogle, our users, or the public as required

or permitted by law

Seven months after the new Privacy Policy has been implemented, Boogle’s Chief Privacy Officer, Jessica, is contacted by the Department of Justice (the “DOJ”). The DOJ explains they have obtained evidence that one of Boogle’s customers, using the email address “[email protected],” purchased cocaine from a seller the DOJ has been tracking on Gregslist.com for several years. In order to prosecute “[email protected],” the DOJ has requested that Boogle disclose the account information for the user attached to the Boogle email address. In addition, the DOJ also requested Boogle disclose the contents within the email communications during the relevant time period. The DOJ assured Boogle that they do not intend to prosecute the Boogle user. The DOJ also gave the requisite notice to “[email protected]” after requesting the disclosure of the user’s information. Although they also tried to assure the user that they had no intention of filing any claims against the buyer, Tim is distrustful of the government and wrote the following letter to the privacy team at Boogle:

Dear Boogle legal team,

After the DOJ notified me they have requested disclosure of my user information and emails from you, I am concerned about the potential negative effects on my future if my personal information and private activities get out. I had hoped that by using Boogle’s services I am in good hands. Since I am not the intended target, Boogle should be not feel obligated to comply with the request.

Moreover, even if Boogle intends to comply with the request, you would be barred from doing so because my consent to the new Privacy Policy was not valid. The text of the notification email I happened to miss states, “[b]y reading this notice and continuing use of Boogle’s services, the user effectively consents to the new Terms & Conditions.” I am in the habit of selecting “Mark as Read” for all emails in my inbox, without opening them. Because of this, I assume Boogle’s system shows that I “read” the email, and thereafter continued to use my boogiemail address. Boogle cannot assume I gave implied consent based on unfamiliarity with this newfangled “browsewrap” technology. If you disclose my information to the government without my consent I am going to go public with a massive social media campaign revealing Boogle as a fake proponent of protecting users’ privacy rights.

Wishing to stay anonymous,Tim

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MEMO WRITING ASSIGNMENTYou are Barbara, privacy counsel in Boogle’s legal department, and your boss Jessica wants a recommendation regarding compliance with the DOJ request. Jessica has asked you to write a 6–8 page memo discussing whether compliance with the DOJ request is voluntary or mandatory under the Stored Communications Act (the “SCA”). She does not want you to write a separate fact section. Jessica has a feeling that compliance is voluntary, however, she would like your recommendations as to the following issues:

Consider Boogle’s policy for protecting their users privacy, their new privacy policy update, and the DOJ’s legitimate interest for government for gaining the name and email address.

Issues to consider:1. Is a request for digital information considered a search under the Fourth Amendment?2. Do email users have a reasonable expectation of privacy?3. Was Tim’s consent to Boogle’s updated user agreement valid?4. Does the DOJ need a warrant to compel Boogle to provide the requested information?

Barbara read somewhere that service providers must specifically reserve the right to take action in response to illicit behavior, stating “they reserve the right to cooperate with law enforcement by disclosing information related to crimes that have been or are being committed.” Boogle’s current Privacy Policy is compliant with this requirement, however, Boogle’s old Privacy Policy and Terms & Conditions only warned users that “criminal activity is prohibited” and that “Boogle will monitor such activity.” If Tim’s consent is not valid as he claims, Barbara is concerned the old language may not be sufficient to defeat a user’s reasonable expectation of privacy and that it would not justify disclosure of the requested information to the DOJ.

The primary purpose of your Memo is to inform Jessica about the law. The best submissions will:

1. Describe all angles of the problem without neglecting any analysis simply because it would not conflict with Jessica’s initial instinct

2. Conclude with a well-reasoned recommendation for Jessica

You may use the following outline to guide your analysis: I. Introduction

a. Introduce the issues addressed in the analysis section b. Briefly indicate your recommendation

II. Analysis a. Issue 1: Whether the DOJ’s request for records and content constitutes a search under the Fourth

Amendment.b. Issue 2: Whether a user experiences a reasonable expectation of privacy in email.b. Issue 3: Has the DOJ complied with all necessary requirements in order to compel Boogle to comply with

the request?III. Conclusion

a. Propose a course of action for Jessica

Note: No outside research is allowed. The following materials and your Bluebook are the only materials you can use for

the writing portion. You must properly cite the sources according to Rules 1-6 on page [x] and the Bluebook’s BLUE PAGES for

practitioners and law clerks (NOT the WHITE PAGES used in the Tech Edit).

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The statutes, articles, and cases were copy and pasted from the Internet. As a result, some of the page numbers and formatting may be disturbed. Please forgive us. If it makes your life easier, you may pin cite to the page number of the research material packet.

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RESEARCH MATERIALSStored Communications Act (18 U.S.C.S. §§ 2702-03)

[§ 2702.] Voluntary disclosure of customer communications or records

(a) Prohibitions. Except as provided in subsection (b) or (c)--

(1) a person or entity providing an electronic communication service to the public shall not knowingly divulge to any person or entity the contents of a communication while in electronic storage by that service;

(3) a provider of remote computing service or electronic communication service to the public shall not knowingly divulge a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications covered by paragraph (1)…) to any governmental entity.

(b) Exceptions for disclosure of communications. A provider described in subsection (a) may divulge the contents of a communication--

(1) to an addressee or intended recipient of such communication or an agent of such addressee or intended recipient;

(3) with the lawful consent of the originator or an addressee or intended recipient of such communication, or the subscriber in the case of remote computing service;

(4) to a person employed or authorized or whose facilities are used to forward such communication to its destination;

(5) as may be necessarily incident to the rendition of the service or to the protection of the rights or property of the provider of that service;

(7) to a law enforcement agency--

(A) if the contents--

(i) were inadvertently obtained by the service provider; and

(ii) appear to pertain to the commission of a crime; or

(8) to a governmental entity, if the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of communications relating to the emergency.

(c) Exceptions for disclosure of customer records. A provider described in subsection (a) may divulge a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications covered by subsection (a)(1)…)--

(2) with the lawful consent of the customer or subscriber;

(3) as may be necessarily incident to the rendition of the service or to the protection of the rights or property of the provider of that service;

(4) to a governmental entity, if the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of information relating to the emergency;

(6) to any person other than a governmental entity.

[§ 2703.] Required disclosure of customer communications or records

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(a) Contents of wire or electronic communications in electronic storage. … A governmental entity may require the disclosure by a provider of electronic communications services of the contents of a wire or electronic communication that has been in electronic storage in an electronic communications system for more than one hundred and eighty days by the means available under subsection (b) of this section.

(b) Contents of wire or electronic communications in a remote computing service.

(1) A governmental entity may require a provider of remote computing service to disclose the contents of any wire or electronic communication to which this paragraph is made applicable by paragraph (2) of this subsection--

(B) with prior notice from the governmental entity to the subscriber or customer if the governmental entity--

(i) uses an administrative subpoena authorized by a Federal or State statute or a Federal or State grand jury or trial subpoena; or

(ii) obtains a court order for such disclosure under subsection (d) of this section;

(c) Records concerning electronic communication service or remote computing service.

(1) A governmental entity may require a provider of electronic communication service or remote computing service to disclose a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications) only when the governmental entity--

(A) obtains a warrant issued using the procedures described in the Federal Rules of Criminal Procedure (or, in the case of a State court, issued using State warrant procedures) by a court of competent jurisdiction;

(B) obtains a court order for such disclosure under subsection (d) of this section;

(C) has the consent of the subscriber or customer to such disclosure;

(d) Requirements for court order. A court order for disclosure under subsection (b) or (c) may be issued by any court that is a court of competent jurisdiction and shall issue only if the governmental entity offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation. … A court issuing an order pursuant to this section, on a motion made promptly by the service provider, may quash or modify such order, if the information or records requested are unusually voluminous in nature or compliance with such order otherwise would cause an undue burden on such provider.

(e) No cause of action against a provider disclosing information under this chapter. No cause of action shall lie in any court against any provider of wire or electronic communication service, its officers, employees, agents, or other specified persons for providing information, facilities, or assistance in accordance with the terms of a court order, warrant, subpoena, statutory authorization, or certification under this chapter [18 USCS §§ 2701 et seq.].

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88 S.Ct. 507Supreme Court of the United States

Charles KATZ, Petitioner,v.

UNITED STATES.No. 35.

Argued Oct. 17, 1967.Decided Dec. 18, 1967.

Opinion

MR. JUSTICE STEWART delivered the opinion of the Court.

[1] [2] The petitioner was convicted in the District Court for the Southern District of California under an eight-count indictment charging him with transmitting wagering information by telephone from Los Angeles to Miami and Boston in violation of a federal statute.1 At trial the Government was permitted, over the petitioner’s objection, to introduce evidence of the petitioner’s end of telephone conversation, overheard by FBI agents who had attached an electronic listening and recording device to the outside of the public telephone booth from which he had placed his calls. In affirming his conviction, the Court of Appeals rejected the contention that the recordings had been obtained in violation of the Fourth Amendment, *349 because ‘(t)here was no physical entrance into the area occupied by, (the petitioner).’2 **510 We granted certiorari in order to consider the constitutional questions thus presented.3

The petitioner had phrased those questions as follows:‘A. Whether a public telephone booth is a constitutionally protected area so that evidence obtained by attaching an electronic listening recording device to the top of such a booth is obtained in violation of the right to privacy of the user of the booth. *350 ‘B. Whether physical penetration of a constitutionally protected area is necessary before a search and seizure can be said to be violative of the Fourth Amendment to the United States Constitution.’ [3] [4] [5] [6] [7] [8] We decline to adopt this formulation of the issues. In the first place the correct solution of Fourth Amendment problems is not necessarily promoted by incantation of the phrase ‘constitutionally protected area.’ Secondly, the Fourth Amendment cannot be translated into a general constitutional ‘right to privacy.’ That Amendment protects individual privacy against certain kinds of governmental intrusion, but its protections go further, and often have nothing to do with privacy at all.4 Other provisions of the Constitution protect personal privacy from other forms of governmental invasion.5 But the protection of a **511 person’s general right to privacy—his right to be let alone by other people6—is, like the *351 protection of his property and of his very life, left largely to the law of the individual States.7

[9] [10] [11] [12] Because of the misleading way the issues have been formulated, the parties have attached great significance to the characterization of the telephone booth from which the petitioner placed his calls. The petitioner has strenuously argued that the booth was a ‘constitutionally protected area.’ The Government has maintained with equal vigor that it was not.8 But this effort to decide whether or not a given ‘area,’ viewed in the abstract, is ‘constitutionally protected’ deflects attention from the problem presented by this case. 9 For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. See Lewis v. United States, 385 U.S. 206, 210, 87 S.Ct. 424, 427, 17 L.Ed.2d 312; United States v. Lee, 274 U.S. 559, 563, 47 S.Ct. 746, 748, 71 L.Ed. 1202. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. *352 See Rios v. United States, 364 U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688; Ex parte Jackson, 96 U.S. 727, 733, 24 L.Ed. 877. [13] The Government stresses the fact that the telephone booth from which the petitioner made his calls was constructed partly of glass, so that he was as visible after he entered it as he would have been if he had remained outside. But what he sought to exclude when he entered the booth was not the intruding eye—it was the uninvited 27 | P a g e


ear. He did not shed his right to do so simply because he made his calls from a place where he might be seen. No less than an individual in a business office,10 in a friend’s apartment,11 or in a taxicab,12 a person in a telephone booth may rely upon the protection of the Fourth Amendment. One who occupies it, shuts the door behind him, and pays the toll that permits **512 him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world. To read the Constitution more narrowly is to ignore the vital role that the public telephone has come to play in private communication. [14] The Government contends, however, that the activities of its agents in this case should not be tested by Fourth Amendment requirements, for the surveillance technique they employed involved no physical penetration of the telephone booth from which the petitioner placed his calls. It is true that the absence of such penetration was at one time thought to foreclose further Fourth Amendment inquiry, Olmstead v. United States, 277 U.S. 438, 457, 464, 466, 48 S.Ct. 564, 565, 567, 568, 72 L.Ed. 944; Goldman v. United States, 316 U.S. 129, 134—136, 62 S.Ct. 993, 995—997, 86 L.Ed. 1322, for that Amendment was thought to limit only searches and seizures of tangible *353 property.13 But ‘(t)he premise that property interests control the right of the Government to search and seize has been discredited.’ Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 304, 87 S.Ct. 1642, 1648, 18 L.Ed.2d 782. Thus, although a closely divided Court supposed in Olmstead that surveillance without any trespass and without the seizure of any material object fell outside the ambit of the Constitution, we have since departed from the narrow view on which that decision rested. Indeed, we have expressly held that the Fourth Amendment governs not only the seizure of tangible items, but extends as well to the recording of oral statements overheard without any ‘technical trespass under * * * local property law.’ Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 682, 5 L.Ed.2d 734. Once this much is acknowledged, and once it is recognized that the Fourth Amendment protects people—and not simply ‘areas’—against unreasonable searches and seizures it becomes clear that the reach of that Amendment cannot turn upon the presence or absence of a physical intrusion into any given enclosure. [15] We conclude that the underpinnings of Olmstead and Goldman have been so eroded by our subsequent decisions that the ‘trespass’ doctrine there enunciated can no longer be regarded as controlling. The Government’s activities in electronically listening to and recording the petitioner’s words violated the privacy upon which he justifiably relied while using the telephone booth and thus constituted a ‘search and seizure’ within the meaning of the Fourth Amendment. The fact that the electronic device employed to achieve that end did not happen to penetrate the wall of the booth can have no constitutional significance. *354 The question remaining for decision, then, is whether the search and seizure conducted in this case complied with constitutional standards. In that regard, the Government’s position is that its agents acted in an entirely defensible manner: They did not begin their electronic surveillance until investigation of the petitioner’s activities had established a strong probability that he was using the telephone in question to transmit gambling information to persons in other States, in violation of federal law. Moreover, the surveillance was limited, both in scope and in duration, to the specific purpose of establishing the contents of the petitioner’s unlawful telephonic communications. The agents confined their surveillance to the brief periods during which he used the telephone booth,14 and **513 they took great care to overhear only the conversations of the petitioner himself.15

[16] [17] Accepting this account of the Government’s actions as accurate, it is clear that this surveillance was so narrowly circumscribed that a duly authorized magistrate, properly notified of the need for such investigation, specifically informed of the basis on which it was to proceed, and clearly apprised of the precise intrusion it would entail, could constitutionally have authorized, with appropriate safeguards, the very limited search and seizure that the Government asserts in fact took place. Only last Term we sustained the validity of *355 such an authorization, holding that, under sufficiently ‘precise and discriminate circumstances,’ a federal court may empower government agents to employ a concealed electronic device ‘for the narrow and particularized purpose of ascertaining the truth of the * * * allegations’ of a ‘detailed factual affidavit alleging the commission of a specific criminal offense.’ Osborn v. United States, 385 U.S. 323, 329—330, 87 S.Ct. 429, 433, 17 L.Ed.2d 394. Discussing that holding, the Court in Berger v. State of New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040, said that ‘the order authorizing the use of the electronic device’ in Osborn ‘afforded similar protections to those * * * of conventional warrants authorizing the seizure of tangible evidence.’ Through those protections, ‘no greater invasion of privacy was permitted than was necessary under the circumstances.’ Id., at 57, 87 S.Ct. at 1882.16 Here, too, **514 a similar *356 judicial order could have accommodated ‘the legitimate needs of law enforcement’17 by authorizing the carefully limited use of electronic surveillance.

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[18] [19] The Government urges that, because its agents relied upon the decisions in Olmstead and Goldman, and because they did no more here than they might properly have done with prior judicial sanction, we should retroactively validate their conduct. That we cannot do. It is apparent that the agents in this case acted with restraint. Yet the inescapable fact is that this restraint was imposed by the agents themselves, not by a judicial officer. They were not required, before commencing the search, to present their estimate of probable cause for detached scrutiny by a neutral magistrate. They were not compelled, during the conduct of the search itself, to observe precise limits established in advance by a specific court order. Nor were they directed, after the search had been completed, to notify the authorizing magistrate in detail of all that had been seized. In the absence of such safeguards, this Court has never sustained a search upon the sole ground that officers reasonably expected to find evidence of a particular crime and voluntarily confined their activities to the least intrusive *357 means consistent with that end. Searches conducted without warrants have been held unlawful ‘notwithstanding facts unquestionably showing probable cause,’ Agnello v. United States, 269 U.S. 20, 33, 46 S.Ct. 4, 6, 70 L.Ed. 145, for the Constitution requires ‘that the deliberate, impartial judgment of a judicial officer * * * be interposed between the citizen and the police * * *.’ Wong Sun v. United States, 371 U.S. 471, 481—482, 83 S.Ct. 407, 414, 9 L.Ed.2d 441. ‘Over and again this Court has emphasized that the mandate of the (Fourth) Amendment requires adherence to judicial processes,’ United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 95, 96 L.Ed. 59, and that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment18 —subject only to a few specifically established and well-delineated exceptions.19

[20] [21] [22] It is difficult to imagine how any of those exceptions could ever apply to the sort of search and seizure involved in this case. Even electronic surveillance substantially contemporaneous with an individual’s arrest could hardly be deemed an ‘incident’ of that arrest.20 **515 *358 Nor could the use of electronic surveillance without prior autorization be justified on grounds of ‘hot pursuit.’21 And, of course, the very nature of electronic surveillance precludes its use pursuant to the suspect’s consent.22

The Government does not question these basic principles. Rather, it urges the creation of a new exception to cover this case.23 It argues that surveillance of a telephone booth should be exempted from the usual requirement of advance authorization by a magistrate upon a showing of probable cause. We cannot agree. Omission of such authorization‘bypasses the safeguards provided by an objective predetermination of probable cause, and substitutes instead the far less reliable procedure of an after-the-event justification for the * * * search, too likely to be subtly influenced by the familiar shortcomings of hindsight judgment.’ Beck v. State of Ohio, 379 U.S. 89, 96, 85S.Ct. 223, 228, 13 L.Ed.2d 142.And bypassing a neutral predetermination of the scope of a search leaves individuals secure from Fourth Amendment *359 violations ‘only in the discretion of the police.’ Id., at 97, 85 S.Ct. at 229. [23] [24] These considerations do not vanish when the search in question is transferred from the setting of a home, an office, or a hotel room to that of a telephone booth. Wherever a man may be, he is entitled to know that he will remain free from unreasonable searches and seizures. The government agents here ignored ‘the procedure of antecedent justification * * * that is central to the Fourth Amendment,’24 a procedure that we hold to be a constitutional precondition of the kind of electronic surveillance involved in this case. Because the surveillance here failed to meet that condition, and because it led to the petitioner’s conviction, the judgment must be reversed.

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FROM THE DEPARTMENT OF JUSTICE

STATEMENT OF ELANA TYRANGIEL PRINCIPAL DEPUTY ASSISTANT ATTORNEY GENERAL

BEFORE THE COMMITTEE ON THE JUDICIARY UNITED STATES SENATE

AT A HEARING ENTITLED “REFORMING THE ELECTRONIC COMMUNICATIONS PRIVACY ACT”

PRESENTEDSEPTEMBER 16, 2015

Chairman Grassley, Ranking Member Leahy, and Members of the Committee, thank you for the opportunity to testify on behalf of the Department of Justice regarding the Electronic Communications Privacy Act (ECPA). This topic is particularly important to the Department because of the wide-ranging impact the statute has on public safety and both criminal and civil law enforcement operations. We are pleased to engage with the Committee in discussions about how ECPA is used and how it might be updated and improved.

ECPA includes the Pen Register Statute and the Stored Communications Act (SCA), as well as amendments to the Wiretap Act. These statutes are part of a set of laws that control the collection and disclosure of both content and non-content information related to electronic communications, as well as content that has been stored remotely. Although originally enacted in 1986, ECPA has been updated several times since, with significant revisions occurring in both 1994 and 2001.

I intend to focus the majority of my testimony on the SCA, which contains three primary components that regulate the disclosure of certain communications and related data. First, section 2701 of Title 18 prohibits unlawful access to certain stored communications: anyone who obtains, alters, or prevents authorized access to those communications is subject to criminal penalties. Second, section 2702 of Title 18 regulates voluntary disclosure by service providers of customer communications and records, both to government and non-governmental entities. Third, section 2703 of Title 18 regulates the government’s ability to compel disclosure of both stored content and non-content information from a service provider; it creates a set of rules that governmental entities generally must follow in order to compel disclosure of stored communications and other records.

Since its inception, the SCA has served multiple purposes. It provides rules governing how providers of communications services disclose stored information—including contents of communications, such as the body of an email, and non-content information—to a wide variety of government entities. In doing so, it imposes requirements on the government and providers to ensure that the privacy of individuals is protected. The statute thus seeks to ensure public safety and other law enforcement imperatives, while at the same time ensuring individual privacy. It is important that efforts to amend the SCA remain focused on maintaining both of these goals. ***

III. The Need for Additional Updates to the SCA and ECPA

Although discussions about updating ECPA have often focused on the standard for governmental access to stored content information, we also believe there are a number of other parts of the statute that merit further examination during any process of updating and clarifying the statute.

(A) Clarifying Exceptions to the Pen Register Statute First, Congress could consider clarifying the exceptions to the Pen Register statute. The Pen Register

statute governs the real-time collection of non-content “dialing, routing, addressing, or signaling information” associated with wire or electronic communications. This information includes phone numbers dialed as well as the “to” and “from” fields of email. In general, the statute requires a court order authorizing such collection on a prospective basis, unless the collection falls within a statutory exception. The exceptions to the Pen Register statute, however, are actually less extensive than the exceptions to the Wiretap Act. This makes little sense—if the government is authorized to intercept communications in real-time, it is reasonable that the government should also be permitted to acquire the accompanying non-content information. Congress could harmonize the exceptions in these two sections of the statute by amending the Pen Register Act to bring it into line with the Wiretap Act. Moreover, the Pen Register Act’s consent provision may be read so that a user can only consent to the use of a

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pen/trap device by the provider as opposed to by the government or the user herself. The Pen Register Act’s consent provision could be clarified to allow the user to provide direct consent for implementation of a pen/trap device by the government.

(B) Clarifying the Standard for Issuing 2703(d) Orders Second, Congress could consider clarifying the standard for the issuance of a court order under §

2703(d) of the SCA, which can be used by criminal law enforcement authorities to compel disclosure of various types of stored records. According to that provision of the statute, “[a] court order for disclosure . . . may be issued by any court that is a court of competent jurisdiction and shall issue only if the governmental entity offers specific and articulable facts showing that there are reasonable grounds to believe that the [records] sought are relevant and material to an ongoing criminal investigation.”

The Fifth Circuit has interpreted this provision to require a court to issue a 2703(d) order when the government makes the “specific and articulable facts” showing specified by § 2703(d). See In re Application of the United States, 724 F.3d 600 (5th Cir. 2013). However, the Third Circuit has held that because the statute says that a § 2703(d) order “may” be issued if the government makes the necessary showing, judges may choose not to sign an application even if it provides the statutory showing. See In re Application of the United States, 620 F.3d 304 (3d Cir. 2010). The Third Circuit’s approach makes the issuance of § 2703(d) orders unpredictable and potentially inconsistent; some judges may impose additional requirements, while others may not.

(C) Making the Standard for Non-content Records Technology-Neutral Third, Congress could consider modernizing the SCA so that the government can use the same legal process to compel disclosure of addressing information associated with modern communications, such as email addresses, as the government already uses to compel disclosure of telephone addressing information. Historically, the government has used a subpoena to compel a phone company to disclose historical dialed number information associated with a telephone call, and ECPA endorsed this practice. However, ECPA treats addressing information associated with email and other electronic communications differently from addressing information associated with phone calls. Therefore, while law enforcement can obtain records of calls made to and from a particular phone using a subpoena, the same officer can only obtain “to” and “from” addressing information associated with email using a court order or a warrant, both of which are only available in criminal investigations. This results in a different level of protection for the same kind of information (e.g., addressing information) depending on the particular technology (e.g., telephone or email) associated with it.

Addressing information associated with email is increasingly important to criminal and national security investigations. Congress could consider updating the SCA to set the same standard for addressing information related to newer technologies as that which applies in traditional telephony.

(D) Clarifying that Subscribers May Consent to Law Enforcement Access to Communications Content

Fourth, Congress could consider clarifying the consent provision of the SCA. Under section 2702, a provider may disclose the contents of communications with the consent of a user or customer, but the provider is not required to do so. This has the impact of allowing the provider to overrule its customer’s direction to disclose content associated with the customer’s account. Thus when the victim of a crime seeks to share his or her own emails or other messages that may provide evidence, providers can refuse to disclose that information to law enforcement, even when provided with a written release from the account owner or subscriber.

* * * In conclusion, I would like to reemphasize that in discussing any efforts to modernize ECPA, it is

important to take into account the statute’s broad application. As technology continues to advance, ECPA’s importance to both criminal and civil law enforcement will only increase.

The Department of Justice stands ready to work with the Committee as it considers potential changes to ECPA. We appreciate the opportunity to discuss this issue with you, and we look forward to continuing to work with you.

This concludes my remarks. I would be pleased to answer your questions.

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Lazette v. KulmatyckiUnited States District Court for the Northern District of Ohio, Western Division

June 5, 2013, FiledOpinion

James G Carr:

This is a suit by Sandi Lazette, a former employee of the defendant Cellco Partnership, [751] d/b/a Verizon Wireless (Verizon), and her supervisor, defendant Kulmatycki. The gravamen of the action is that, after plaintiff left Verizon's employee and returned her company-issued blackberry (which she used and refers to in her complaint as her "phone"), Kulmatycki, during the ensuing eighteen months, read without her knowledge or authorization 48,000 e-mails sent to plaintiff's personal g-mail account. In addition, plaintiff alleges Kulmatycki disclosed the contents of some of the e-mails to others.

This alleged conduct gives rise to five claims: 1) violation of the Stored Communications Act (SCA), 18 U.S.C. § 2701 et. seq . ; 2) violation of Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (Title III), 18 U.S.C. § 2510 et seq ; 3) Ohio common law invasion of privacy/seclusion; 4) civil recover for violation of O.R.C. § 2913.04(B); and 5) Ohio common law intentional infliction of emotional distress.

Pending is defendants' motion to dismiss. (Doc. 5). For the reasons that follow, I deny the motion in part and grant it in part.

BackgroundAccording to the complaint, the factual allegations of which I take as true, Verizon provided the blackberry

for plaintiff's use. She was told that she could use the company-issued phone for personal e-mail. She had an account with g-mail, though she believed she had deleted that account from the phone before giving it to Kulmatycki in September, 2010. She understood that Verizon would "recycle" the phone for use by another employee.

In May, 2012, plaintiff learned that Kulmatycki, rather than deleting her g-mail account, had been accessing her g-mail account for a period of eighteen months. In addition, Kulmatycki, on information and belief, had disclosed the contents of the e-mails he had accessed.

Plaintiff neither consented to nor authorized Kulmatycki's surreptitious reading of her personal e-mails. His actions were within the scope and course of his employment with Verizon.

Once plaintiff was aware of Kulmatycki's actions, she changed her password to prevent further access. Before she did so, he had accessed 48,000 e-mails in plaintiff's g-mail account. Among the contents of the accessed e-mails were communications about plaintiff's family, career, financials, health, and other personal matters.Kulmatycki's conduct was knowing, intentional, willful, wanton, malicious, and fraudulent. He undertook his actions to benefit Verizon and further his own interests.

[752] Discussion

1. Stored Communications ActSection 2701 of the SCA states in pertinent part:(a) Offense.--Except as provided in subsection (c) of this section whoever--(1) intentionally accesses without authorization a facility through which an electronic communication service is provided; or(2) intentionally exceeds an authorization to access that facility;

and thereby obtains . . . access to a wire or electronic communication while it is in electronic storage in such system shall be punished as provided in subsection (b) of this section.* * * * *(c) Exceptions.--Subsection (a) of this section does not apply with respect to conduct authorized--

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(1) by the person or entity providing a wire or electronic communications service; . . . .

Section 2707 of the SCA provides in pertinent part:(a) Cause of action.— . . . [A]ny . . . person aggrieved by any violation of this chapter in which the conduct constituting the violation is engaged in with a knowing or intentional state of mind may, in a civil action, recover from the person or entity, other than the United States, which engaged in that violation such relief as may be appropriate.

Relief available under this provision includes equitable relief, damages, and reasonable attorneys' fees and litigation costs. 18 U.S.C. § 2707(b).The SCA incorporates the definition of "electronic storage" from Title III:(A) any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof; and (B) any storage of such communication by an electronic communication service for purposes of backup protection of such communication.18 U.S.C. § 2510(17).

The defendants assert that Kulmatycki's opening and reading 48,000 of plaintiff's e-mails during an eighteen month period did not violate the SCA. ***b. Authority to Access Plaintiff's E-MailsDefendants argue that Kulmatycki had authority to access plaintiff's g-mail account because: 1) he used a company-owned blackberry; 2) he did not access a "facility," as the statute uses that term; [754] and 3) plaintiff authorized Kulmatycki's access because she had: a) not expressly told him not to read her e-mails; and b) implicitly consented to his access by not deleting her g-mail account.***iii. Plaintiff did not Authorize Access to her E-Mails

Plaintiff deleted the e-mails she had received before leaving Verizon. But she did not also close her g-mail account, though she believed she had done so. Her failure to be more careful, defendants contend, deprives her of any claim under the SCA.

Defendants correctly contend that the essence of plaintiff's complaint is that Kulmatycki accessed her e-mails without her consent. According to them, the plaintiff negligently and/or implicitly consented to his doing so when she returned the blackberry without having ensured that she had deleted her g-mail account.Defendants also point out that plaintiff's complaint does not allege that Kulmatycki took any affirmative steps to cause the device to receive e-mails. Nothing in the SCA requires one who accesses a service provider without authorization also to have done something to the equipment to facilitate his access. To the extent [757] that plaintiff has to prove the Kulmatycki did anything "affirmative," she has done so via her contention that he read her e-mails. Doing so required opening the e-mails, which was an affirmative act on his part.

Turning to the substance of defendants' contentions, defendants, in effect, contend that plaintiff's negligence left her e-mail door open for Kulmatycki to enter and roam around in for as long and as much as he desired.

This is an unacceptable reading of § 2701(a)(1), which prohibits "access without authorization," and of the private party consent surveillance provision, 18 U.S.C. § 2511(2)(d). To be sure, consent under this provision need not be explicit, it can, as defendants allege, also be implied. Williams v. Poulos , 11 F.3d 271, 281 (1st Cir.1993) . Negligence is, however, not the same as approval, much less authorization. There is a difference between someone who fails to leave the door locked when going out and one who leaves it open knowing someone be stopping by.

Whether viewed through the lens of negligence or even of implied consent, there is no merit to defendants' attempt to shift the focus from Kulmatycki's actions to plaintiff's passive and ignorant failure to make certain that the blackberry could not access her future e-mail. On this issue, a case involving a claim of implied consent under 18 U.S.C. § 2511(2)(d), Griggs-Ryan v. Smith , 904 F.2d 112 (1st Cir. 1990) , is instructive:

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[I]mplied [consent] is "consent in fact" which is inferred "from surrounding circumstances indicating that the [party] knowingly agreed to the surveillance." Thus, implied consent-or the absence of it-may be deduced from "the circumstances prevailing" in a given situation. The circumstances relevant to an implication of consent will vary from case to case, but the compendium will ordinarily include language or acts which tend to prove (or disprove) that a party knows of, or assents to, encroachments on the routine expectation that conversations are private. And the ultimate determination must proceed in light of the prophylactic purpose of Title III-a purpose which suggests that consent should not casually be inferred.Id . at 116-17 . (citations omitted) (emphasis supplied). Accord, Williams, supra , 11 F.3d at 281 .

Indeed, even "knowledge of the capability of monitoring alone cannot be considered implied consent." Deal v. Spears , 980 F.2d 1153, 1157 (8th Cir.1992) . In that case the court held an employee did not impliedly consent to monitoring of her phone calls when her employer only told her that it might monitor phone calls. Id. In this case, where plaintiff believed she had eliminated her g-mail account from the blackberry, she was unaware of the possibility that others might access her future e-mails from that account.

What it takes to find implied consent shows clearly that plaintiff here did give such consent. Thus, in U.S. v. Workman , 80 F.3d 688, 693 (2d Cir.1996) , the court found an inmate had impliedly consented where a notice by the telephone and prison handbook told him calls would be monitored. Similarly, in Griggs—Ryan, supra , 904 F.2d at 118, the plaintiff had been told several times that monitoring of phone calls would occur. In Shefts v. Petrakis , 758 F.Supp.2d 620, 631 (C.D. Ill. 2010), the court found implied consent where the employee [758] manual informed him text messages would be logged.

Consent to access otherwise private electronic communications can, under § 2511(2)(d), constitute authorization to read those communications. Even when a party gives such consent, it is limited by its own terms. An inmate who knows his phone conversations with a friend might be monitored does not expose his communications with his attorney to a jailer's ear. Here, even if plaintiff were aware that her e-mails might be monitored, any such implied consent that the law might perceive in that knowledge would not be unlimited. Random monitoring is one thing; reading everything is another.

c. Electronic StorageThe defendants claim that the complaint fails to allege sufficient facts to establish that the e-mails

Kulmatycki accessed were in "electronic storage" when he accessed them. As previously noted, the SCA incorporates the definition of "electronic storage" in § 2510(17) of Title III: "(A) any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof; and (B) any storage of such communication by an electronic communication service for the purposes of backup protection of such communication." 18 U.S.C. § 2510(17).

The defendants argue, and several courts have agreed, that only e-mails awaiting opening by the intended recipient are within this definition. In re DoubleClick, Inc. Privacy Litig ., 154 F.Supp.2d 497, 511-12 (S.D.N.Y. 2001); Fraser v. Nationwide Mut. Ins. Co ., 135 F.Supp.2d 623, 635-36 (E.D.Pa.2001) ; U.S. v. Weaver , 636 F.Supp.2d 769, 771 (C.D.Ill. 2009); Hilderman v. Enea TekSci, Inc . 551 F.Supp.2d 1183, 1205 (S.D.Cal. 2008) ("courts have construed subsection (A) as applying to e-mail messages stored on an ISP's server pending delivery to the recipient, but not e-mail messages remaining on an ISP's server after delivery."; Jennings v. Jennings , 401 S.C. 1, 736 S.E.2d 242, 245 (S.C. 2012). E-mails which an intended recipient has opened may, when not deleted, be "stored," in common parlance. But in light of the restriction of "storage" in § 2510(17)(B) solely for "backup protection," e-mails which the intended recipient has opened, but not deleted (and thus which remain available for later re-opening) are not being kept "for the purposes of backup protection." Jennings, supra , 736 S.E.2d at 245 .

Thus, plaintiff cannot prevail to the extent that she seeks to recover based on a claim that Kulmatycki violated the SCA when he accessed e-mails which she had opened but not deleted. Such e-mails were not in "backup" status as § 2510(17)(B) uses that term or "electronic storage" as § 2701(a) uses that term.With regard to e-mails which plaintiff had yet to open before Kulmatycki did so, defendants argue that her allegations about her unopened e-mails being in electronic storage fail the Twombly/Iqbal test. This is so, because

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plaintiff does not specify which of the 48,000 e-mails which [759] Kulmatycki allegedly accessed were awaiting opening by plaintiff.

Given the volume of e-mails which plaintiff alleges Kulmatycki opened, I believe that I can draw a fair and plausible inference that Kulmatycki opened some of those e-mails before plaintiff did, and thus, in doing so, violated § 2701(a).Plaintiff's complaint adequately alleges that Kulmatycki violated § 2701(a) when he opened e-mails before she did.

In light of the foregoing, I overrule defendants' complaint to the extent that it seeks dismissal in toto of plaintiff's SCA claim. I grant it, however, to the extent that plaintiff seeks to recover for his opening of e-mails which she had opened before he did.

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In re A Warrant for All Content & Other Info. Associated with the Email Account [email protected] Maintained at Premises Controlled by Google, Inc.

United States District Court for the Southern District of New York

July 18, 2014, Decided; July 18, 2014, FiledOpinion

Gabriel W. Gorenstein

On June 11, 2014, this Court was presented with an application for a search warrant pursuant to Rule 41 of the Federal Rules of Criminal Procedure and 18 U.S.C. §§ 2703(a), (b)(1)(A), and (c)(1)(A). The application sought a warrant to obtain emails and other information from a "Gmail" account, which is hosted by Google, Inc., and to permit a search of those emails for certain specific categories of evidence. The Court granted the application on the day it was presented. In light of decisions issued elsewhere in the country that have denied search warrants in similar circumstances — particularly in the District of Columbia and the District of Kansas, see, e.g., In the Matter of the Search of Information Associated with [redacted] @mac.com that is Stored at Premises Controlled by Apple, Inc., 13 F. Supp. 3d 145, 2014 U.S. Dist. LEXIS 52053, 2014 WL 1377793 (D.D.C. April 7, 2014) ("D.C. Opinion"); In the Matter of Applications for Search Warrants for Information Associated with Target Email Accounts/Skype Accounts, 2013 U.S. Dist. LEXIS 123129, 2013 WL 4647554 (D. Kan. Aug. 27, 2013) ("Kansas Opinion") — we write to explain why we issued the warrant here.

***III. DISCUSSIONIn addition to the D.C. Opinion and the Kansas Opinion previously cited, the Court is aware of other

decisions emanating from these courts that have denied applications for warrants authorizing searches of email accounts. We address in this Memorandum Opinion two issues that were central to the results reached in these cases. First, is it appropriate to issue a search warrant that allows the Government to obtain all emails in an account even though there is no probable cause to believe that the email account consists exclusively of emails that are within the categories of items to be seized under the search warrant? As a subsidiary issue, we will also consider whether we may in the alternative require the email host — in this case, Google — to conduct a review of the emails and provide to the Government only those emails responsive to categories listed in the warrant. Second, assuming we permit delivery of the entire email account to the Government, should the Court require that the Government follow certain protocols — whether as to length of search, manner of search, or length of retention of the emails — as a condition of obtaining the search warrant?

A. Whether Google Should Be Directed to Produce All the Emails Associated with the Email AccountThe D.C. Opinion refused to issue a warrant requiring disclosure of the entire contents of an email account

on the ground that the Government will "actually seize large quantities of e-mails for which it has not established probable cause . . . . " 2014 U.S. Dist. LEXIS 52053, 2014 WL 1377793, at *5 (emphasis omitted). As the D.C. Opinion put it:

Here, the warrant describes only certain emails that are to be seized — and the government has only established probable cause for those emails. Yet it seeks to seize all e-mails by having them "disclosed" by [the email host]. This is [391] unconstitutional because "[t]he government simply has not shown probable cause to search the contents of all emails ever sent to or from the account."

Id. (quoting In re Search of Target Email Address, 2012 U.S. Dist. LEXIS 138465, 2012 WL 4383917, at *9 (D. Kan. Sept. 21, 2012)). The Kansas Opinion similarly criticized the warrant sought in that case on the ground that it required an email host to disclose "all email communications in their entirety" and "fail[ed] to limit the universe of electronic communications and information to be turned over to the government to the specific crimes being investigated." 2013 U.S. Dist. LEXIS 123129, 2013 WL 4647554, at *8.

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The D.C. Opinion's characterization of the Government's application as an improper "seizure" of documents for which it had not shown probable cause cites to Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971). Coolidge, in a discussion of the "plain view" exception to the search warrant requirement, noted that the warrant requirement serves to ensure that "those searches deemed necessary should be as limited as possible," id. at 467. Coolidge referred to the history of "general warrants" in colonial times, and stated that "the problem is not that of intrusion per se, but of a general, exploratory rummaging in a person's belongings." Id. As the Supreme Court later explained:

The general warrant specified only an offense — typically seditious libel — and left to the discretion of the executing officials the decision as to which persons should be arrested and which places should be searched. Similarly, the writs of assistance used in the Colonies noted only the object of the search — any uncustomed goods — and thus left customs officials completely free to search any place where they believed such goods might be. The central objectionable feature of both warrants was that they provided no judicial check on the determination of the executing officials that the evidence available justified an intrusion into any particular home.

Steagald v. United States, 451 U.S. 204, 220, 101 S. Ct. 1642, 68 L. Ed. 2d 38 (1981).

In the D.C. Opinion's view, "any e-mails that are turned over to the government are unquestionably 'seized' within the meaning of the Fourth Amendment." 2014 U.S. Dist. LEXIS 52053, 2014 WL 1377793, at *3. Thus, by making an application to "seize an entire e-mail account even though it had only established probable cause for some of the e-mails," the Government was viewed in the D.C. Opinion as having asked the court "to issue a general warrant that would allow a general, exploratory rummaging in a person's belongings' — in this case an individual's email account." Id. (citing Coolidge, 403 U.S. at 467) (additional citation omitted).

This Court respectfully disagrees with the D.C. Opinion on this point because we believe it too narrowly construes the Fourth Amendment's particularity requirement and is contrary to copious precedent. As an initial matter, we note that "[a]mple case authority sanctions some perusal, generally fairly brief, of . . . documents (seized during an otherwise valid search) . . . in order for the police to perceive the relevance of the documents to crime." United States v. Mannino, 635 F.2d 110, 115 (2d Cir. 1980) (quoting United States v. Ochs, 595 F.2d 1247, 1257 n.8 (2d Cir. 1979)); accord Andresen v. Maryland, 427 U.S. 463, 482 n.11, 96 S. Ct. 2737, 49 L. Ed. 2d 627 (1976) ("In searches for papers, it is certain that some innocuous documents will be examined, at least cursorily, in order to determine whether they are, in fact, among those papers authorized to be seized."). As the Second Circuit has [392] noted, "allowing some latitude in this regard simply recognizes the reality that few people keep documents of their criminal transactions in a folder marked 'drug records.'" United States v. Riley, 906 F.2d 841, 845 (2d Cir. 1990). With respect to the execution of search warrants seeking physical evidence, courts "permit[] the government to examine paper documents that might otherwise fall outside the scope of a search warrant to make that determination, recognizing that different types of evidence present different tactical issues." Metter, 860 F. Supp. 2d at 213. In other words, courts have long recognized the practical need for law enforcement to exercise dominion over documents not within the scope of the warrant in order to determine whether they fall within the warrant. Such exercise of dominion essentially amounts to a "seizure" even if the seizure takes place at the premises searched and is only temporary. See, e.g., United States v. Jones, 132 S. Ct. 945, 958, 181 L. Ed. 2d 911 (2012) ("A seizure of property occurs when there is some meaningful interference with an individual's possessory interests in that property.") (quoting United States v. Jacobsen, 466 U.S. 109, 113, 104 S. Ct. 1652, 80 L. Ed. 2d 85 (1984) (internal quotation marks omitted)).

In the case of electronic evidence, which typically consists of enormous amounts of undifferentiated information and documents, courts have recognized that a search for documents or files responsive to a warrant cannot possibly be accomplished during an on-site search. Thus, "courts developed a more flexible approach to the execution of search warrants for electronic evidence, holding the government to a standard of reasonableness." Metter, 860 F. Supp. 2d at 214; accord United States v. Graziano, 558 F. Supp. 2d 304, 317 (E.D.N.Y. 2008) (courts have afforded law enforcement "leeway in searching computers for incriminating evidence within the scope of materials specified in the warrant") (citations omitted); United States v. Scarfo, 180 F. Supp. 2d 572, 578 (D.N.J. 2001) ("Where proof of wrongdoing depends upon documents . . . whose precise nature cannot be known in advance, law enforcement officers must be afforded the leeway to wade through a potential morass of information in

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the target location to find the particular evidence which is properly specified in the warrant."); see also United States. v. Ganias, 755 F.3d 125, 2014 U.S. App. LEXIS 11222, 2014 WL 2722618, at *7-*8 (2d Cir. June 17, 2014) ("[T]he ability of computers to store massive volumes of information presents logistical problems in the execution of search warrants.").

The need to permit the Government to examine electronic materials off-site rather than require it to conduct an on-site search is most obviously demonstrated in the case of a search of a computer hard disk drive ("hard drive"), which is the part of a computer that actually stores files and documents. In the context of suppression motions, courts have routinely upheld the seizure or copying of hard drives and other storage devices in order to effectuate a proper search for the categories of documents or files listed in a warrant. See, e.g., United States v. Schesso, 730 F.3d 1040, 1046 (9th Cir. 2013) (the challenge of "searching for digital data that was not limited to a specific, known file or set of files" and the inability to "know[] which or how many illicit files there might be or where they might be stored, or of describing the items to be seized in a more precise manner" justified "seizure and subsequent off-premises search of [defendant's] entire computer system and associated digital storage devices"); United States v. Evers, 669 F.3d 645, 652 (6th Cir. 2012) ("The federal courts are in agreement that a warrant authorizing the seizure of a defendant's home computer equipment and digital media for a subsequent off-site electronic [393] search is not unreasonable or overbroad, as long as the probable-cause showing in the warrant application and affidavit demonstrate a sufficient chance of finding some needles in the computer haystack.") (citations and quotation marks omitted); United States v. Stabile, 633 F.3d 219, 234 (3d Cir. 2011) (rejecting requirement of "on-site" search of hard drives because the "practical realities of computer investigations preclude on-site searches"); United States v. Grimmett, 439 F.3d 1263, 1269 (10th Cir. 2006) (upholding seizure and subsequent off-site search of computer in a "laboratory setting"); United States v. Hay, 231 F.3d 630, 637 (9th Cir. 2000) (upholding seizure and search of an "entire computer system and virtually every document in [the defendant's] possession without referencing child pornography or any particular offense conduct" because, although officers "knew that [a party] had sent 19 images [of child pornography] directly to [the defendant's] computer, [they] had no way of knowing where the images were stored"); United States v. Upham, 168 F.3d 532, 535 (1st Cir. 1999) ("As a practical matter, the seizure and subsequent off-premises search of the computer and all available disks was about the narrowest definable search and seizure reasonably likely to obtain the images [of child pornography sought]."). In other words, the seizure or "off-site imaging" (that is, copying) of computer hard drives is "a necessity of the digital era." Metter, 860 F. Supp. 2d at 214; accord United States v. Burns, 2008 U.S. Dist. LEXIS 35312, 2008 WL 4542990, at *5 (N.D. Ill. April 29, 2008) ("Courts have found that seizure of computer equipment before search is reasonable given the complexities of electronic searches, as long as the requirements of the Fourth Amendment are met.").

In addition, the Federal Rules of Criminal Procedure were amended in 2009 to specifically provide for such a procedure. As stated in that rule:

A warrant under Rule 41 (e)(2)(A) may authorize the seizure of electronic storage media or the seizure or copying of electronically stored information. Unless otherwise specified, the warrant authorizes a later review of the media or information consistent with the warrant. The time for executing the warrant in Rule 41(e)(2)(A) and (f)(1)(A) refers to the seizure or on-site copying of the media or information, and not to any later off-site copying or review.

Fed. R. Crim. P. 41(e)(2)(B). The Advisory Committee notes to the 2009 amendments to Rule 41 explained the need for such a procedure:

Computers and other electronic storage media commonly contain such large amounts of information that it is often impractical for law enforcement to review all of the information during execution of the warrant at the search location. This rule acknowledges the need for a two-step process: officers may seize or copy the entire storage medium and review it later to determine what electronically stored information falls within the scope of the warrant.

The Second Circuit has recently recognized that "[i]n light of the significant burdens on-site review would place on both the individual and the Government, the creation of mirror images for offsite review is constitutionally permissible in most instances, even if wholesale removal of tangible papers would not be." Ganias, 2014 U.S. App.

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LEXIS 11222, 2014 WL 2722618, at *8. Thus, we view it as well-established that a search warrant can properly permit the Government to obtain access to electronic information for purposes of a search even where the probable cause showing does not apply to the entirety of the electronic information that is disclosed to the Government.

[394] We perceive no constitutionally significant difference between the searches of hard drives just discussed and searches of email accounts. Indeed, in many cases, the data in an email account will be less expansive than the information that is typically contained on a hard drive. Therefore, we believe the case law we have cited concerning searches of hard drives and other storage media supports the Government's ability to access an entire email account in order to conduct a search for emails within the limited categories contained in the warrant. Notably, every case of which we are aware that has entertained a suppression motion relating to the search of an email account has upheld the Government's ability to obtain the entire contents of the email account to determine which particular emails come within the search warrant. See United States v. Bach, 310 F.3d 1063, 1065 (8th Cir. 2002) (upholding as constitutionally reasonable the seizure of "all of the information" from defendant's email account where the service provider did not "selectively choose or review the contents of the named account"); United States v. Ayache, 2014 U.S. Dist. LEXIS 30648, 2014 WL 923340, at *2-3 (M.D. Tenn. March 10, 2014) (denying motion to suppress "seizure of all emails in a defendant's account [] where there was probable cause to believe that the email account contained evidence of a crime"); United States v. Deppish, 994 F. Supp. 2d 1211, 2014 U.S. Dist. LEXIS 12085, 2014 WL 349735, at *6-7 & n.37 (D. Kan. Jan. 31, 2014) (noting that "nothing in § 2703 precludes the Government from requesting the full content of a specified email account," and concluding that such a search is not a "general search"); United States v. Taylor, 764 F. Supp. 2d 230, 232, 237 (D. Me. 2011) (upholding search of "all information associated with an identified Microsoft hotmail account"); United States v. Bowen, 689 F. Supp. 2d 675, 682 (S.D.N.Y. 2010) ( Fourth Amendment does not require authorities to "ascertain which e-mails are relevant before copies are obtained from the internet service provider for subsequent searching"); United States v. McDarrah, 2006 U.S. Dist. LEXIS 48269, 2006 WL 1997638, at *9-10 (S.D.N.Y. July 17, 2006) (denying motion to suppress seizure of "[a]ll stored electronic mail and other stored content information presently contained in" a specified email account), aff'd, 351 F. App'x 558 (2d Cir. 2009).

The D.C. Opinion offered the Government the option of seeking a warrant that would have required the email host — in that case, Apple, Inc. — to itself conduct the search of emails. 2014 U.S. Dist. LEXIS 52053, 2014 WL 1377793, at *6. There might be some force to requiring an email host to cull emails from an email account where a limitation in the scope of the items to be seized would allow the email host to produce responsive material in a manner devoid of the exercise of skill or discretion for example, under a warrant requiring disclosure of all emails from a particular time period. But in the absence of such circumstances, it is unrealistic to believe that Google or any other email host could be expected to produce the materials responsive to categories listed in a search warrant. First, the burden on Google would be enormous because duplicating the Government's efforts might require it to examine every email. See, e.g., Hill, 459 F.3d at 978 ("There is no way to know what is in a file without examining its contents, just as there is no sure way of [395] separating talcum from cocaine except by testing it."); Scarfo, 180 F. Supp. 2d at 578 (law enforcement may need to "wade through a potential morass of information in the target location to find the particular evidence which is properly specified in the warrant."); accord United States v. Fumo, 2007 U.S. Dist. LEXIS 80543, 2007 WL 3232112 at *6 (E.D. Pa. Oct. 30, 2007) ("[I]n the case of documents on computers . . . relevant documents may be intermingled with irrelevant ones.").

Second, Google employees would not be able to interpret the significance of particular emails without having been trained in the substance of the investigation. Seemingly innocuous or commonplace messages could be the direct evidence of illegality the Government had hoped to uncover. While an agent steeped in the investigation could recognize the significance of particular language in emails, an employee of the email host would be incapable of doing so. The D.C. Court's suggestion to the contrary is seemingly premised on the notion that service providers are experienced in responding to subpoenas. See March 7 Opinion, 2014 U.S. Dist. LEXIS 35323, 2014 WL 945563, at *6 ("There is no reason to believe that Apple or any other entity served with a warrant is incapable of doing what entities responding to subpoenas have done under common law."). But the recipient of a subpoena typically searches only its own records, of which it is expected to have a full understanding of the source and content. It is not called upon to search another party's records. We note additionally that in instances where a grand jury has been convened, the Government might be prevented from providing relevant investigative information to

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the email host in light of the secrecy protections afforded grand jury information pursuant to Fed. R. Crim. P. 6(e)(2)(B).

Thus, the D.C. Opinion's proposal gives insufficient consideration to the difficulty of executing a search warrant for digital information and the likelihood that the Government's investigative efforts would be severely hampered by requiring that this crucial and complex investigative activity be performed by an email host. Placing the responsibility for performing these searches on the email host would also put the host's employees in the position of appearing to act as agents of the Government vis-à-vis their customers. Moreover, it would allow private employees — who have no constitutional responsibilities to the public — to obtain personal information about a target of an investigation that they would otherwise have no occasion to see, and with no apparent limitation on their use of this information other than limitations imposed by their employer. Not surprisingly, HN20 courts have routinely rejected arguments made in the course of suppression motions that a warrant should have required a third party to conduct searches of electronic information. See, e.g., Deppish, 2014 U.S. Dist. LEXIS 12085, 2014 WL 349735, at *6 ("[N]othing in the Fourth Amendment requires law enforcement to cede to non-law enforcement their power to search and determine which matters are subject to seizure."); Taylor, 764 F. Supp. 2d at 237 ("The Fourth Amendment does not require the government to delegate a prescreening function to the internet service provider or to ascertain which e-mails are relevant before copies are obtained from the internet service provider for subsequent searching.") (citations omitted); Bowen, 689 F. Supp. 2d at 682 ("[T]he Fourth Amendment [does not] require the executing authorities to delegate a pre-screening function to the internet service provider or to ascertain which e-mails are relevant before copies are obtained from the internet service provider for subsequent searching.") (citing United States v. Vilar, 2007 U.S. Dist. LEXIS 26993, 2007 WL 1075041, at *35 (S.D.N.Y. April 4, 2007)) . Thus, we conclude that the [396] warrant properly required that Google deliver all emails in the account to the Government for the purpose of allowing the Government to search the emails for items within the categories specified in the warrant.

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UNITED STATES OF AMERICA, Plaintiff-Appellee,v.

MARK STEPHEN FORRESTER, Defendant-Appellant; DENNIS LOUIS ALBA, Defendant-Appellant.United States Court of Appeals, for the Ninth Circuit

January 12, 2007; January 7, 2008, Second Amendment; July 6, 2007, FiledNo. 05-50410, No. 05-50493

Opinion [504] AMENDED OPINION

FISHER, Circuit Judge:

Defendants-appellants Mark Stephen Forrester and Dennis Louis Alba were charged with various offenses relating to the operation of a large Ecstasy-manufacturing laboratory, and were convicted on all counts following a jury trial. They now appeal their convictions and sentences.

Forrester moved to represent himself prior to trial. At the hearing on this motion, the district court carefully warned Forrester of the dangers of self-representation, but did not inform him of the charge against him and told him that he faced 10 years to life in prison whereas he actually faced a potential prison term of zero to 20 years. The omission and the misstatement compel us to hold that Forrester's waiver of his right to counsel was not knowing and intelligent and that the Sixth Amendment was violated when he was allowed to proceed pro se. Accordingly, we reverse Forrester's conviction and sentence.

Alba challenges the validity of computer surveillance that enabled the government to learn the to/from addresses of his e mail messages, the Internet protocol ("IP") addresses of the websites that he visited and the total volume of information transmitted to or from his account. We conclude that this surveillance was analogous to the use of a pen register that the Supreme Court held in Smith v. Maryland, 442 U.S. 735, 99 S. Ct. 2577, 61 L. Ed. 2d 220 (1979), did not constitute a search for Fourth Amendment purposes. Moreover, whether or not the surveillance came within the scope of the then-applicable federal pen register statute, Alba is not entitled to the suppression of the evidence obtained through the surveillance because there is no statutory or other authority for such a remedy.

[505] I. BACKGROUNDFollowing a lengthy government investigation, Forrester and Alba were indicted on October 26, 2001, and arraigned shortly thereafter. Forrester was charged with one count of conspiracy to manufacture and distribute 3, 4-methylenedioxymethamphetamine ("Ecstasy") in violation of 21 U.S.C. §§ 841(a)(1), 846. Alba was also charged with that offense, as well as with engaging in a continuing criminal enterprise in violation of 21 U.S.C. § 848(a), conspiracy to transfer funds outside the United States in promotion of an illegal activity in violation of 18 U.S.C. § 1956(a)(2)(A)(i), (h) and conspiracy to conduct financial transactions involving the proceeds of an illegal activity in violation of 18 U.S.C. § 1956(a)(1)(A)(i), (h). Both defendants pleaded not guilty to all charges.

During its investigation of Forrester and Alba's Ecstasy-manufacturing operation, the government employed various computer surveillance techniques to monitor Alba's e-mail and Internet activity. The surveillance began in May 2001 after the government applied for and received court permission to install a pen register analogue known as a "mirror port" on Alba's account with PacBell Internet. The mirror port was installed at PacBell's connection facility in San Diego, and enabled the government to learn the to/from addresses of Alba's e-mail messages, the IP addresses of the websites that Alba visited and the total volume of information sent to or from his account. Later, the government obtained a warrant authorizing it to employ imaging and keystroke monitoring techniques, but Alba does not challenge on [506] appeal those techniques' legality or the government's application to use them.

Forrester and Alba were tried by jury. At trial, the government introduced extensive evidence showing that they and their associates built and operated a major Ecstasy laboratory. Witnesses described the lab as "very, very large," and seized documents show that it was intended to produce approximately 440 kilograms of Ecstasy (and $ 10 million in profit) per month. The government also presented evidence that Alba purchased precursor chemicals for Ecstasy, that Forrester met with a Swedish chemist in Stockholm to learn about manufacturing Ecstasy, that the defendants

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first tried to construct the lab in two other locations before settling on Escondido, California and that the Escondido lab was located inside an insulated sea/land container and contained an array of devices and chemicals used to make Ecstasy.

The jury convicted Forrester and Alba on all counts. The district court sentenced them each to 360 months in prison and six years of supervised release. Both defendants timely appealed.

III. DISCUSSION

B. Computer SurveillanceAlba contends that the government's surveillance of his e-mail and Internet activity violated the Fourth Amendment and fell outside the scope of the then-applicable federal pen register statute. We hold that the surveillance did not constitute a Fourth Amendment search and thus was not unconstitutional. We also hold that whether or not the computer surveillance was covered by the then-applicable pen register statute -- an issue that we do not decide -- Alba is not entitled to the suppression of any evidence (let alone the reversal of his convictions) as a consequence.

1. The Fourth AmendmentThe Supreme Court held in Smith v. Maryland, 442 U.S. 735, 99 S. Ct. 2577, 61 L. Ed. 2d 220 (1979), that the use of a pen register (a device that records numbers dialed from a phone line) does not constitute a search for Fourth Amendment purposes. Id. at 745-46. According to the Court, people do not have a subjective expectation of privacy in numbers that they dial because they "realize that they must 'convey' phone numbers to the telephone company, since it is through telephone company switching equipment that their calls are completed." Id. at 742. Even if there were such a subjective expectation, it would not be one that society is prepared to recognize as reasonable because "a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties." Id. at 743-44. Therefore the use of a pen register is not a Fourth Amendment search. Importantly, the Court distinguished pen registers from more intrusive surveillance techniques on the ground that "pen registers do not acquire the contents of communications" but rather obtain only the addressing information associated with phone calls. Id. at 741; see also id. at 743 ("Although petitioner's conduct may have been calculated to keep the contents of his conversation private, his conduct was not and could not have been calculated to preserve the privacy of the number he dialed."); cf. Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967) (legitimate expectation [510] of privacy exists in contents of phone conversation).

Neither this nor any other circuit has spoken to the constitutionality of computer surveillance techniques that reveal the to/from addresses of e-mail messages, the IP addresses of websites visited and the total amount of data transmitted to or from an account. We conclude that the surveillance techniques the government employed here are constitutionally indistinguishable from the use of a pen register that the Court approved in Smith. First, e-mail and Internet users, like the telephone users in Smith, rely on third-party equipment in order to engage in communication. Smith based its holding that telephone users have no expectation of privacy in the numbers they dial on the users' imputed knowledge that their calls are completed through telephone company switching equipment. 442 U.S. at 742. Analogously, e-mail and Internet users have no expectation of privacy in the to/from addresses of their messages or the IP addresses of the websites they visit because they should know that this information is provided to and used by Internet service providers for the specific purpose of directing the routing of information. Like telephone numbers, which provide instructions to the "switching equipment that processed those numbers," e-mail to/from addresses and IP addresses are not merely passively conveyed through third party equipment, but rather are voluntarily turned over in order to direct the third party's servers. Id. at 744.

Second, e-mail to/from addresses and IP addresses constitute addressing information and do not necessarily reveal any more about the underlying contents of communication than do phone numbers. When the government obtains the to/from addresses of a person's e-mails or the IP addresses of websites visited, it does not find out the contents of the messages or know the particular pages on the websites the person viewed. At best, the government may make educated guesses about what was said in the messages or viewed on the websites based on its knowledge of the e-mail to/from addresses and IP addresses -- but this is no different from speculation about the contents of a phone conversation on the basis of the identity of the person or entity that was dialed. Like IP addresses, certain phone numbers may strongly indicate the underlying contents of the communication; for example, the government would

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know that a person who dialed the phone number of a chemicals company or a gun shop was likely seeking information about chemicals or firearms. Further, when an individual dials a pre-recorded information or subject-specific line, such as sports scores, lottery results or phone sex lines, the phone number may even show that the caller had access to specific content information. Nonetheless, the Court in Smith and Katz drew a clear line between unprotected addressing information and protected content information that the government did not cross here.

[511] The government's surveillance of e-mail addresses also may be technologically sophisticated, but it is conceptually indistinguishable from government surveillance of physical mail. In a line of cases dating back to the nineteenth century, the Supreme Court has held that the government cannot engage in a warrantless search of the contents of sealed mail, but can observe whatever information people put on the outside of mail, because that information is voluntarily transmitted to third parties. See United States v. Jacobsen, 466 U.S. 109, 114, 104 S. Ct. 1652, 80 L. Ed. 2d 85 (1984) (stating that warrantless searches of letters and sealed packages are "presumptively unreasonable"); United States v. Van Leeuwen, 397 U.S. 249, 251-52, 90 S. Ct. 1029, 25 L. Ed. 2d 282 (1970) (mail is "free from inspection . . . except in the manner provided by the Fourth Amendment," but postal authorities could nonetheless detain mail without warrant based on suspicious appearance and circumstances); Ex parte Jackson, 96 U.S. 727, 733, 24 L. Ed. 877 (1877) ("Letters and sealed packages of this kind in the mail are as fully guarded from examination and inspection, except as to their outward form and weight, as if they were retained by the parties forwarding them in their own domiciles."); see also United States v. Hernandez, 313 F.3d 1206, 1209-10 (9th Cir. 2002) ("Although a person has a legitimate interest that a mailed package will not be opened and searched en route, there can be no reasonable expectation that postal service employees will not handle the package or that they will not view its exterior.") (internal citation omitted). E-mail, like physical mail, has an outside address "visible" to the third-party carriers that transmit it to its intended location, and also a package of content that the sender presumes will be read only by the intended recipient. The privacy interests in these two forms of communication are identical. The contents may deserve Fourth Amendment protection, but the address and size of the package do not.

Finally, the pen register in Smith was able to disclose not only the phone numbers dialed but also the number of calls made. There is no difference of constitutional magnitude between this aspect of the pen register and the government's monitoring here of the total volume of data transmitted to or from Alba's account. Devices that obtain addressing information also inevitably reveal the amount of information coming and going, and do not thereby breach the line between mere addressing and more content-rich information.

We therefore hold that the computer surveillance techniques that Alba challenges are not Fourth Amendment searches. However, our holding extends only to these particular techniques and does not imply that more intrusive techniques or techniques that reveal more content information are also constitutionally identical to the use of a pen register.

2. The Then-Applicable Pen Register StatuteAlba claims that the government's computer surveillance was not only unconstitutional [512] but also beyond the scope of the then-applicable pen register statute, 18 U.S.C. § 3121-27 (amended October 2001). Under both the old and new versions of 18 U.S.C. § 3122, the government must apply for and obtain a court order before it can install and use a pen register. When the surveillance at issue here took place in May-July 2001, the applicable statute defined a pen register as a "device which records or decodes electronic or other impulses which identify the numbers dialed or otherwise transmitted on the telephone line to which such device is attached." 18 U.S.C. § 3127(3). Notwithstanding the government's invocation of this provision and application for and receipt of a court order, Alba maintains that the computer surveillance at issue here did not come within the statutory definition of a "pen register."

Even assuming that Alba is correct in this contention, he would not be entitled to the suppression of the evidence obtained through the computer surveillance. As both the Supreme Court and this court have emphasized, suppression is a disfavored remedy, imposed only where its deterrence benefits outweigh its substantial social costs or (outside the constitutional context) where it is clearly contemplated by the relevant statute. See, e.g., Hudson v. Michigan, 547 U.S. 586, 126 S. Ct. 2159, 2163, 165 L. Ed. 2d 56 (2006) ("Suppression of evidence . . . has always been our last resort, not our first impulse."); United States v. Lombera-Camorlinga, 206 F.3d 882, 887 (9th Cir. 2000) (en banc) (citing "the infrequency with which we have allowed an exclusionary remedy for a non-

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constitutional harm"). Alba does not point to any statutory language requiring suppression when computer surveillance that is similar but not technically equivalent to a pen register is carried out. Indeed, he does not even identify what law or regulation the government may have violated if its surveillance did not come within the scope of the then-applicable pen register statute. The suppression of evidence under these circumstances is plainly inappropriate.

Our conclusion is bolstered by the fact that suppression still would not be appropriate even if the computer surveillance was covered by the pen register statute. Assuming the surveillance violated the statute, there is no mention of suppression of evidence in the statutory text. Cf. id. at 883-84 (holding that suppression of evidence was not an appropriate remedy for a violation of Article 36 of the Vienna Convention when nothing in the text of the treaty suggested such a remedy). Instead, the only penalty specified is that "[w]hoever knowingly violates subsection (a)" by installing or using a pen register without first obtaining a court order "shall be fined under this title or imprisoned not more than one year, or both." 18 U.S.C. § 3121(d). Where the legislature has already specified a remedy for a statutory violation, here fines and imprisonment, "we would 'encroach upon the prerogatives' of Congress were we to authorize a remedy not provided for by statute." United States v. Frazin, 780 F.2d 1461, 1466 (9th Cir. 1986) (quoting United States v. Chanen, 549 F.2d 1306, 1313 (9th Cir. 1977)).

Indeed, two circuits have explicitly held (and we have implied) that evidence obtained in violation of the pen register statute need not be suppressed. See United States v. Fregoso, 60 F.3d 1314, 1320 (8th Cir. 1995) ("[T]he statutory scheme [of the [513] pen register statute] does not mandate exclusion of evidence for violations of the statutory requirements."); United States v. Thompson, 936 F.2d 1249, 1249-50 (11th Cir. 1991) ("We hold that information obtained from a pen register placed on a telephone can be used as evidence in a criminal trial even if the court order authorizing its installation does not comply with the statutory requirements."); cf. United States v. Butz, 982 F.2d 1378, 1383 (9th Cir. 1993) (refusing to suppress evidence obtained in violation of state pen register statute). The statutory text, our general reluctance to require suppression in the absence of statutory authorization, other circuits' holdings and our own indirect precedent all therefore lead us to conclude that suppression is inappropriate even if the computer surveillance came within the scope of the then-applicable pen register statute.

Finally, even if suppression were a valid remedy, any error in not excluding evidence was harmless. The evidence obtained through the computer surveillance was never introduced at trial and was used only as a minor portion of the government's application for a court order authorizing imaging and keystroke monitoring. There was more than enough other evidence in that application to generate probable cause even if the to/from addresses of Alba's e-mails, the IP addresses he accessed and the volume of data transmitted to or from his account had been suppressed. The discussion of the computer surveillance spanned only four pages of the 45-page supporting affidavit for the application, and revealed only that Alba had sent e-mails to Forrester and accessed certain chemicals websites. The remainder of the affidavit included extensive -- and more incriminating -- evidence obtained through physical surveillance, conventional pen registers, wiretaps and cooperating witness statements. Much of this other evidence predated the start of the computer surveillance, and there is no indication that evidence obtained through the computer surveillance was used to obtain authorization for any of the other surveillance techniques discussed in the affidavit. See Nix v. Williams, 467 U.S. 431, 443-44, 104 S. Ct. 2501, 81 L. Ed. 2d 377 (1984) (warrant based in part on tainted evidence still valid if there were independent sources that created probable cause).

IV. CONCLUSIONWe reverse Forrester's conviction and sentence because his waiver of the right to counsel was not knowing and intelligent. As requested by the parties, and for the reasons set forth in the concurrently filed memorandum disposition, we vacate Alba's conviction and sentence for conspiracy to manufacture and distribute Ecstasy. We also hold that the techniques the government used to monitor Alba's e-mail and Internet activity did not constitute a search for Fourth Amendment purposes and that, whether or not the monitoring came within the scope of the then-applicable pen register statute, Alba is not entitled to the suppression of evidence obtained through the monitoring. Accordingly, we affirm Alba's other convictions and sentences, meaning that his prison term remains 360 months while his supervised release term is reduced from six to five years.

Forrester's conviction and sentence are REVERSED. Alba's convictions and sentences are AFFIRMED IN PART AND REVERSED IN PART.

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631 F.3d 266United States Court of Appeals,

Sixth Circuit.

UNITED STATES of America, Plaintiff–Appellee,v.

Steven WARSHAK (08–3997/4085; 09–3176); Harriet Warshak (08–3997/4087/4429); TCI Media, Inc. (08–3997/4212), Defendants–Appellants.

Nos. 08–3997, 08–4085, 08–4087, 08–4212, 08–4429, 09–3176.Argued: June 16, 2010.

Decided and Filed: Dec. 14, 2010.Rehearing and Rehearing En Banc Denied March 7, 2011.

OPINION

BOGGS, Circuit Judge.

II. ANALYSIS

A. The Search & Seizure of Warshak’s Emails[1] Warshak argues that the government’s warrantless, ex parte seizure of approximately 27,000 of his private emails constituted a violation of the Fourth Amendment’s prohibition on unreasonable searches and seizures. 12 The government counters that, even if government agents violated the Fourth Amendment in obtaining the emails, they relied in good faith on the Stored Communications Act (“SCA”), 18 U.S.C. §§ 2701 et seq., a statute that allows the government to obtain certain electronic communications without procuring a warrant. The government also argues that any hypothetical Fourth Amendment violation was harmless. We find that the government did violate Warshak’s Fourth Amendment rights by compelling his Internet Service Provider (“ISP”) to turn over the contents of his emails. However, we agree that agents relied on the SCA in good faith, and therefore hold that reversal is unwarranted.13

1. The Stored Communications Act[2] The Stored Communications Act (“SCA”), 18 U.S.C. §§ 2701 et seq., “permits a ‘governmental entity’ to compel a service provider to disclose the contents of [electronic] communications in certain circumstances.” Warshak II, 532 F.3d at 523. As this court explained in Warshak II:

Three relevant definitions bear on the meaning of the compelled-disclosure provisions of the Act. “[E]lectronic communication service[s]” permit “users ... to send or receive wire or electronic communications,” [18 U.S.C.] § 2510(15), a definition that covers basic e-mail services, see Patricia L. Bellia et al., Cyberlaw: Problems of Policy and Jurisprudence in the Information Age 584 (2d ed. 2004). “[E]lectronic storage” is “any temporary, intermediate storage of a wire or electronic communication ... and ... any storage of such communication by an electronic communication service *283 for purposes of backup protection of such communication.” 18 U.S.C. § 2510(17). “[R]emote computing service[s]” provide “computer storage or processing services” to customers, id. § 2711(2), and are designed for longer-term storage, see Orin S. Kerr, A User’s Guide to the Stored Communications Act, and a Legislator’s Guide to Amending It, 72 Geo. Wash. L.Rev. 1208, 1216 (2004).

The compelled-disclosure provisions give different levels of privacy protection based on whether the e-mail is held with an electronic communication service or a remote computing service and based on how long the e-mail has been in electronic storage. The government may obtain the contents of e-mails that are “in electronic storage” with an electronic communication service for 180 days or less “only pursuant to a warrant.” 18 U.S.C. § 2703(a). The government has three options for obtaining communications stored with a remote computing service and communications that have been in electronic storage with an electronic service provider for more than 180 days: (1) obtain a warrant; (2) use an administrative subpoena; or (3) obtain a court order under § 2703(d). Id. § 2703(a), (b).

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532 F.3d at 523–24 (some alterations in original).

2. Factual BackgroundEmail was a critical form of communication among Berkeley personnel. As a consequence, Warshak had a number of email accounts with various ISPs, including an account with NuVox Communications. In October 2004, the government formally requested that NuVox prospectively preserve the contents of any emails to or from Warshak’s email account. The request was made pursuant to 18 U.S.C. § 2703(f) and it instructed NuVox to preserve all future messages.14 NuVox acceded to the government’s request and began preserving copies of Warshak’s incoming and outgoing emails—copies that would not have existed absent the prospective preservation request. Per the government’s instructions, Warshak was not informed that his messages were being archived. In January 2005, the government obtained a subpoena under § 2703(b) and compelled NuVox to turn over the emails that it had begun preserving the previous year. In May 2005, the government served NuVox with an ex parte court order under § 2703(d) that required NuVox to surrender any additional email messages in Warshak’s account. In all, the government compelled NuVox to reveal the contents of approximately 27,000 emails. Warshak did not receive notice of either the subpoena or the order until May 2006.

3. The Fourth Amendment[3] The Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause....” U.S. CONST. amend. IV. The fundamental purpose of the Fourth Amendment “is to safeguard the privacy and security of individuals against arbitrary invasions by government officials.” Camara v. Mun. Ct., 387 U.S. 523, 528, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967); see Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 613–14, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989) (“The [Fourth] Amendment *284 guarantees the privacy, dignity, and security of persons against certain arbitrary and invasive acts by officers of the Government or those acting at their direction.”). [4] Not all government actions are invasive enough to implicate the Fourth Amendment. “The Fourth Amendment’s protections hinge on the occurrence of a ‘search,’ a legal term of art whose history is riddled with complexity.” Widgren v. Maple Grove Twp., 429 F.3d 575, 578 (6th Cir.2005). A “search” occurs when the government infringes upon “an expectation of privacy that society is prepared to consider reasonable.” United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984). This standard breaks down into two discrete inquiries: “first, has the [target of the investigation] manifested a subjective expectation of privacy in the object of the challenged search? Second, is society willing to recognize that expectation as reasonable?” California v. Ciraolo, 476 U.S. 207, 211, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986) (citing Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979)). Turning first to the subjective component of the test, we find that Warshak plainly manifested an expectation that his emails would be shielded from outside scrutiny. As he notes in his brief, his “entire business and personal life was contained within the ... emails seized.” Appellant’s Br. at 39–40. Given the often sensitive and sometimes damning substance of his emails,15 we think it highly unlikely that Warshak expected them to be made public, for people seldom unfurl their dirty laundry in plain view. See, e.g., United States v. Maxwell, 45 M.J. 406, 417 (C.A.A.F.1996) (“[T]he tenor and content of e-mail conversations between appellant and his correspondent, ‘Launchboy,’ reveal a[n] ... expectation that the conversations were private.”). Therefore, we conclude that Warshak had a subjective expectation of privacy in the contents of his emails. The next question is whether society is prepared to recognize that expectation as reasonable. See Smith, 442 U.S. at 740, 99 S.Ct. 2577. This question is one of grave import and enduring consequence, given the prominent role that email has assumed in modern communication. Cf. Katz, 389 U.S. at 352, 88 S.Ct. 507 (suggesting that the Constitution must be read to account for “the vital role that the public telephone has come to play in private communication”). Since the advent of email, the telephone call and the letter have waned in importance, and an explosion of Internet-based communication has taken place. People are now able to send sensitive and intimate information, instantaneously, to friends, family, and colleagues half a world away. Lovers exchange sweet nothings, and businessmen swap ambitious plans, all with the click of a mouse button. Commerce has also taken hold in

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email. Online purchases are often documented in email accounts, and email is frequently used to remind patients and clients of imminent appointments. In short, “account” is an apt word for the conglomeration of stored messages that comprises an email account, as it provides an account of its owner’s life. By obtaining access to someone’s email, government agents gain the ability to peer deeply into his activities. Much hinges, therefore, on whether the government is permitted to request that a commercial ISP turn over the contents of a subscriber’s emails without triggering the machinery of the Fourth Amendment. *285 In confronting this question, we take note of two bedrock principles. First, the very fact that information is being passed through a communications network is a paramount Fourth Amendment consideration. See ibid.; United States v. U.S. Dist. Court, 407 U.S. 297, 313, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972) (“[T]he broad and unsuspected governmental incursions into conversational privacy which electronic surveillance entails necessitate the application of Fourth Amendment safeguards.”). Second, the Fourth Amendment must keep pace with the inexorable march of technological progress, or its guarantees will wither and perish. See Kyllo v. United States, 533 U.S. 27, 34, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001) (noting that evolving technology must not be permitted to “erode the privacy guaranteed by the Fourth Amendment”); see also Orin S. Kerr, Applying the Fourth Amendment to the Internet: A General Approach, 62 Stan. L.Rev. 1005, 1007 (2010) (arguing that “the differences between the facts of physical space and the facts of the Internet require courts to identify new Fourth Amendment distinctions to maintain the function of Fourth Amendment rules in an online environment”). With those principles in mind, we begin our analysis by considering the manner in which the Fourth Amendment protects traditional forms of communication. In Katz, the Supreme Court was asked to determine how the Fourth Amendment applied in the context of the telephone. There, government agents had affixed an electronic listening device to the exterior of a public phone booth, and had used the device to intercept and record several phone conversations. See 389 U.S. at 348, 88 S.Ct. 507. The Supreme Court held that this constituted a search under the Fourth Amendment, see id. at 353, 88 S.Ct. 507, notwithstanding the fact that the telephone company had the capacity to monitor and record the calls, see Smith, 442 U.S. at 746–47, 99 S.Ct. 2577 (Stewart, J., dissenting). In the eyes of the Court, the caller was “surely entitled to assume that the words he utter[ed] into the mouthpiece w[ould] not be broadcast to the world.” Katz, 389 U.S. at 352, 88 S.Ct. 507. The Court’s holding in Katz has since come to stand for the broad proposition that, in many contexts, the government infringes a reasonable expectation of privacy when it surreptitiously intercepts a telephone call through electronic means. Smith, 442 U.S. at 746, 99 S.Ct. 2577 (Stewart, J., dissenting) (“[S]ince Katz, it has been abundantly clear that telephone conversations are fully protected by the Fourth and Fourteenth Amendments.”). Letters receive similar protection. See Jacobsen, 466 U.S. at 114, 104 S.Ct. 1652 (“Letters and other sealed packages are in the general class of effects in which the public at large has a legitimate expectation of privacy [.]”); Ex Parte Jackson, 96 U.S. 727, 733, 24 L.Ed. 877 (1877). While a letter is in the mail, the police may not intercept it and examine its contents unless they first obtain a warrant based on probable cause. Ibid. This is true despite the fact that sealed letters are handed over to perhaps dozens of mail carriers, any one of whom could tear open the thin paper envelopes that separate the private words from the world outside. Put another way, trusting a letter to an intermediary does not necessarily defeat a reasonable expectation that the letter will remain private. See Katz, 389 U.S. at 351, 88 S.Ct. 507 (“[W]hat [a person] seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.”).Given the fundamental similarities between email and traditional forms of communication, it would defy common sense *286 to afford emails lesser Fourth Amendment protection. See Patricia L. Bellia & Susan Freiwald, Fourth Amendment Protection for Stored E–Mail, 2008 U. Chi. Legal F. 121, 135 (2008) (recognizing the need to “eliminate the strangely disparate treatment of mailed and telephonic communications on the one hand and electronic communications on the other”); City of Ontario v. Quon, 560U.S. 746, 130 S.Ct. 2619, 2631, 177 L.Ed.2d 216 (2010) (implying that “a search of [an individual’s] personal e-mail account” would be just as intrusive as “a wiretap on his home phone line”); United States v. Forrester, 512 F.3d 500, 511 (9th Cir.2008) (holding that “[t]he privacy interests in [mail and email] are identical”). Email is the technological scion of tangible mail, and it plays an indispensable part in the Information Age. Over the last decade, email has become “so pervasive that some persons may consider [it] to be [an] essential means or necessary instrument[ ] for self-expression, even self-identification.” Quon, 130 S.Ct. at 2630. It follows that email requires strong protection under the Fourth Amendment; otherwise, the Fourth Amendment would prove an ineffective guardian of private communication, an essential purpose it has

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long been recognized to serve. See U.S. Dist. Court, 407 U.S. at 313, 92 S.Ct. 2125; United States v. Waller, 581 F.2d 585, 587 (6th Cir.1978) (noting the Fourth Amendment’s role in protecting “private communications”). As some forms of communication begin to diminish, the Fourth Amendment must recognize and protect nascent ones that arise. See Warshak I, 490 F.3d at 473 (“It goes without saying that like the telephone earlier in our history, e-mail is an ever-increasing mode of private communication, and protecting shared communications through this medium is as important to Fourth Amendment principles today as protecting telephone conversations has been in the past.”). If we accept that an email is analogous to a letter or a phone call, it is manifest that agents of the government cannot compel a commercial ISP to turn over the contents of an email without triggering the Fourth Amendment. An ISP is the intermediary that makes email communication possible. Emails must pass through an ISP’s servers to reach their intended recipient. Thus, the ISP is the functional equivalent of a post office or a telephone company. As we have discussed above, the police may not storm the post office and intercept a letter, and they are likewise forbidden from using the phone system to make a clandestine recording of a telephone call—unless they get a warrant, that is. See Jacobsen, 466 U.S. at 114, 104 S.Ct. 1652; Katz, 389 U.S. at 353, 88 S.Ct. 507. It only stands to reason that, if government agents compel an ISP to surrender the contents of a subscriber’s emails, those agents have thereby conducted a Fourth Amendment search, which necessitates compliance with the warrant requirement absent some exception. In Warshak I, the government argued that this conclusion was improper, pointing to the fact that NuVox contractually reserved the right to access Warshak’s emails for certain purposes. While we acknowledge that a subscriber agreement might, in some cases, be sweeping enough to defeat a reasonable expectation of privacy in the contents of an email account, see Warshak I, 490 F.3d at 473; Warshak II, 532 F.3d at 526–27, we doubt that will be the case in most situations, and it is certainly not the case here. As an initial matter, it must be observed that the mere ability of a third-party intermediary to access the contents of a communication cannot be sufficient to extinguish a reasonable expectation of privacy. *287 In Katz, the Supreme Court found it reasonable to expect privacy during a telephone call despite the ability of an operator to listen in. See Smith, 442 U.S. at 746–47, 99 S.Ct. 2577 (Stewart, J., dissenting). Similarly, the ability of a rogue mail handler to rip open a letter does not make it unreasonable to assume that sealed mail will remain private on its journey across the country. Therefore, the threat or possibility of access is not decisive when it comes to the reasonableness of an expectation of privacy. Nor is the right of access. As the Electronic Frontier Foundation points out in its amicus brief, at the time Katz was decided, telephone companies had a right to monitor calls in certain situations. Specifically, telephone companies could listen in when reasonably necessary to “protect themselves and their properties against the improper and illegal use of their facilities.” Bubis v. United States, 384 F.2d 643, 648 (9th Cir.1967). In this case, the NuVox subscriber agreement tracks that language, indicating that “NuVox may access and use individual Subscriber information in the operation of the Service and as necessary to protect the Service.” Acceptable Use Policy, available at http://business.windstream.com/Legal/acceptableUse.htm (last visited Aug. 12, 2010). Thus, under Katz, the degree of access granted to NuVox does not diminish the reasonableness of Warshak’s trust in the privacy of his emails.16

Our conclusion finds additional support in the application of Fourth Amendment doctrine to rented space. Hotel guests, for example, have a reasonable expectation of privacy in their rooms. See United States v. Allen, 106 F.3d 695, 699 (6th Cir.1997). This is so even though maids routinely enter hotel rooms to replace the towels and tidy the furniture. Similarly, tenants have a legitimate expectation of privacy in their apartments. See United States v. Washington, 573 F.3d 279, 284 (6th Cir.2009). That expectation persists, regardless of the incursions of handymen to fix leaky faucets. Consequently, we are convinced that some degree of routine access is hardly dispositive with respect to the privacy question. Again, however, we are unwilling to hold that a subscriber agreement will never be broad enough to snuff out a reasonable expectation of privacy. As the panel noted in Warshak I, if the ISP expresses an intention to “audit, inspect, and monitor” its subscriber’s emails, that might be enough to render an expectation of privacy unreasonable.

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See 490 F.3d at 472–73 (quoting United States v. Simons, 206 F.3d 392, 398 (4th Cir.2000)). But where, as here, there is no such statement, the ISP’s “control over the [emails] and ability to access them under certain limited circumstances will not be enough to overcome an expectation of privacy.” Id. at 473. We recognize that our conclusion may be attacked in light of the Supreme Court’s decision in United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976). In Miller, the Supreme Court held that a bank depositor does not have a reasonable expectation of privacy in the contents of bank records, checks, and deposit slips. Id. at 442, 96 S.Ct. 1619. The Court’s holding in Miller was based on the fact that bank documents, “including financial statements and deposit slips, contain *288 only information voluntarily conveyed to the banks and exposed to their employees in the ordinary course of business.” Ibid. The Court noted,

The depositor takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government.... [T]he Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.

Id. at 443, 96 S.Ct. 1619 (citations omitted). But Miller is distinguishable. First, Miller involved simple business records, as opposed to the potentially unlimited variety of “confidential communications” at issue here. See ibid. Second, the bank depositor in Miller conveyed information to the bank so that the bank could put the information to use “in the ordinary course of business.” Ibid. By contrast, Warshak received his emails through NuVox. NuVox was an intermediary, not the intended recipient of the emails. See Bellia & Freiwald, Stored E–Mail, 2008 U. Chi. Legal F. at 165 (“[W]e view the best analogy for this scenario as the cases in which a third party carries, transports, or stores property for another. In these cases, as in the stored e-mail case, the customer grants access to the ISP because it is essential to the customer’s interests.”). Thus, Miller is not controlling. [5] Accordingly, we hold that a subscriber enjoys a reasonable expectation of privacy in the contents of emails “that are stored with, or sent or received through, a commercial ISP.” Warshak I, 490 F.3d at 473; see Forrester, 512 F.3d at 511 (suggesting that “[t]he contents [of email messages] may deserve Fourth Amendment protection”). The government may not compel a commercial ISP to turn over the contents of a subscriber’s emails without first obtaining a warrant based on probable cause. Therefore, because they did not obtain a warrant, the government agents violated the Fourth Amendment when they obtained the contents of Warshak’s emails. Moreover, to the extent that the SCA purports to permit the government to obtain such emails warrantlessly, the SCA is unconstitutional.

4. Good–Faith Reliance[6] Even though the government’s search of Warshak’s emails violated the Fourth Amendment, the emails are not subject to the exclusionary remedy if the officers relied in good faith on the SCA to obtain them. See Krull, 480 U.S. at 349–50, 107 S.Ct. 1160. In Krull, the Supreme Court noted that the exclusionary rule’s purpose of deterring law enforcement officers from engaging in unconstitutional conduct would not be furthered by holding officers accountable for mistakes of the legislature. Ibid. Thus, even if a statute is later found to be unconstitutional, an officer “cannot be expected to question the judgment of the legislature.” Ibid. However, an officer cannot “be said to have acted in good-faith reliance upon a statute if its provisions are such that a reasonable officer should have known that the statute was unconstitutional.” Id. at 355, 107 S.Ct. 1160. Naturally, Warshak argues that the provisions of the SCA at issue in this case were plainly unconstitutional. He argues that any reasonable law enforcement officer would have understood that a warrant based on probable cause would be required to compel the production of private emails. In making this argument, he leans heavily on Warshak I, which opined that the SCA permits agents to engage in searches “that *289 clearly do not comport with the Fourth Amendment.” 490 F.3d at 477. However, we disagree that the SCA is so conspicuously unconstitutional as to preclude good-faith reliance. As we

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noted in Warshak II, “[t]he Stored Communications Act has been in existence since 1986 and to our knowledge has not been the subject of any successful Fourth Amendment challenges, in any context, whether to § 2703(d) or to any other provision.” 532 F.3d at 531. Furthermore, given the complicated thicket of issues that we were required to navigate when passing on the constitutionality of the SCA, it was not plain or obvious that the SCA was unconstitutional, and it was therefore reasonable for the government to rely upon the SCA in seeking to obtain the contents of Warshak’s emails.17

But the good-faith reliance inquiry does not end with the facial validity of the statute at issue. In Krull, the Supreme Court hinted that the good-faith exception does not apply if the government acted “outside the scope of the statute” on which it purported to rely. 480 U.S. at 360 n. 17, 107 S.Ct. 1160. It should be noted that this portion of the Krull Court’s opinion was merely dicta, and it appears that we have yet to pass on the question. However, it seems evident that an officer’s failure to adhere to the boundaries of a given statute should preclude him from relying upon it in the face of a constitutional challenge.18 Once the officer steps outside the scope of an unconstitutional statute, the mistake is no longer the legislature’s, but the officer’s. See ibid. (“In that context, the relevant actors are not legislators or magistrates, but police officers who concededly are engaged in the often competitive enterprise of ferreting out crime.” (citation and internal quotation marks omitted)). Therefore, use of the exclusionary rule is once again efficacious in deterring officers from engaging in conduct that violates the Constitution. Ibid. Warshak argues that the government violated several provisions of the SCA and should therefore be precluded from arguing good-faith reliance. First, Warshak argues that the government violated the SCA’s notice provisions. Under § 2703(b)(1)(B), the government must provide notice to an account holder if it seeks to compel the disclosure of his emails through either a § 2703(b) subpoena or a § 2703(d) order. However, § 2705 permits the government to delay notification in certain situations. The initial period of delay is 90 days, but the government may seek to extend that period in 90–day increments. In this case, the government issued both a § 2703(b) subpoena and a § 2703(d) order to NuVox, seeking disclosure of Warshak’s emails. At the time, the government made the requisite showing that notice should be delayed. However, the government did not seek to renew the period of delay. In all, the government failed to inform Warshak of either the subpoena or the order for over a year. Conceding that it violated the notice provisions, the government argues that such violations are irrelevant to the issue of whether it reasonably relied on the *290 SCA in obtaining the contents of Warshak’s emails. We agree. As the government notes, the violations occurred after the emails had been obtained. Thus, the mistakes at issue had no bearing on the constitutional violations. Because the exclusionary rule was designed to deter constitutional violations, we decline to invoke it in this situation. But Warshak does not hang his hat exclusively on the government’s violations of the SCA’s notice provisions. He also argues that the government exceeded its authority under another SCA provision— § 2703(f)—by requesting NuVox to engage in prospective preservation of his future emails.19 Under § 2703(f), “[a] provider of wire or electronic communication services or a remote computing service, upon the request of a governmental entity, shall take all necessary steps to preserve records and other evidence in its possession pending the issuance of a court order or other process.” 18 U.S.C. § 2703(f) (emphasis added). Warshak argues that this statute permits only retrospective preservation—in other words, preservation of emails already in existence. He notes that the Department of Justice (“DOJ”) generally agrees with his construction of the statute, pointing to the DOJ’s own computer-surveillance manual, which states: “[Section] 2703(f) letters should not be used prospectively to order providers to preserve records not yet created. If agents want providers to record information about future electronic communications, they should comply with the [Wiretap Act and the Pen/Trap statute].”20

Ultimately, however, this statutory violation, whether it occurred or not,21 is irrelevant to the issue of good-faith reliance. The question here is whether the government relied in good faith on § 2703(b) and § 2703(d) to obtain copies of Warshak’s emails. True, the government might not have been able to gain access to the emails without the prospective preservation request, as it was NuVox’s practice to delete all emails once they were downloaded to the account holder’s computer. Thus, in a sense, the government’s use of § 2703(f) was a but-for cause of the constitutional violation. But the actual violation at issue was obtaining the emails, and the government did not rely on § 2703(f) specifically to do that. Instead, the government relied on § 2703(b) and § 2703(d). The proper inquiry, therefore, is whether the government violated either of those provisions, and the preservation request is of no consequence to that inquiry.

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Warshak’s next argument is that the government violated § 2703(d) by failing to provide any particularized factual basis *291 when seeking an order for disclosure. Under § 2703(d), such an order “shall issue only if the governmental entity offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication ... are relevant and material to an ongoing criminal investigation.” To the extent that he is arguing that the government’s application was insufficient, Warshak is wrong. The government’s application indicated that it was “investigating a complex, large-scale mail and wire fraud operation based in Cincinnati, Ohio.” The application also indicated that “interviews of current and former employees of the target company suggest that electronic mail is a vital communication tool that has been used to perpetuate the fraudulent conduct.” Additionally, the application observed that “various sources [have verified] that NuVox provides electronic communications services to certain individual(s) [under] investigation.” In light of these statements, it is clear that the application was, in fact, supported by specific and articulable facts, especially given the diminished standard that applies to § 2703(d) applications. See United States v. Perrine, 518 F.3d 1196, 1202 (10th Cir.2008) (noting that “the ‘specific and articulable facts’ standard derives from the Supreme Court’s decision in Terry ”); Warshak I, 490 F.3d at 463 (“The parties agree that the standard of proof for a court order—‘specific and articulable facts showing that there are reasonable grounds to believe that the contents ... or records ... are relevant and material to an ongoing criminal investigation’—falls short of probable cause.”). Finally, Warshak argues that a finding of good-faith reliance is improper because the government presented the magistrate with an erroneous definition of the term “electronic storage.” As noted above, if an email is in electronic storage for less than 180 days, the government may not compel its disclosure without a warrant. 18 U.S.C. § 2703(a). In applying for the subpoena and the order that eventually resulted in the disclosure of Warshak’s NuVox emails, the government suggested to the magistrate that an email is not in electronic storage if it has already been “accessed, viewed, or downloaded.” Warshak argues that this definition of electronic storage does not comport with the Ninth Circuit’s decision in Theofel v. Farey–Jones, 359 F.3d 1066, 1071 (9th Cir.2004), which held that “prior access is irrelevant to whether the [emails] at issue were in electronic storage.” Warshak further argues that, because the government failed to mention the Ninth Circuit’s definition, it “usurped the court’s function to determine whether an email ... [is] in ‘electronic storage [.]’ ” Appellant’s Br. at 38. As an initial matter, it is manifest that the decisions of the Ninth Circuit are not binding on courts in this circuit. It therefore cannot be said that the government somehow violated § 2703 by failing to cite an out-of-circuit decision that it thought to be wrongly decided. Incidentally, the government is not alone in thinking that the Ninth Circuit’s definition of electronic storage is incorrect. One commentator has noted that “Theofel is quite implausible and hard to square with the statutory test.” Kerr, A User’s Guide to the Stored Communications Act, 72 Geo. Wash. L.Rev. at 1217; see also United States v. Weaver, 636 F.Supp.2d 769, 773 (C.D.Ill.2009) ( “Previously opened emails stored by Microsoft for Hotmail users are not in electronic storage, and the Government can obtain copies of such emails using a trial subpoena.”). Furthermore, it does a disservice to the magistrate judge to suggest that the government usurped the role of the court. *292 The government’s application did include a proposed definition of the term “electronic storage.” That does not mean, however, that the magistrate judge unhesitatingly received that definition, and, as the government notes, the magistrate “presumably [had] the opportunity to consider and review relevant precedent.” Appellee’s Br. at 117. Consequently, we find that, although the government violated the Fourth Amendment, the exclusionary rule does not apply, as the government relied in good faith on § 2703(b) and § 2703(d) to access the contents of Warshak’s emails.22

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