This didn't seem possible. Warshak's e-mail provider, NuVox, deleted his messages from its servers after Warshak's computer grabbed a copy of them. To get access to the messages, the feds should have had to (1) infiltrate Warshak's computer or (2) wiretap Warshak's Internet connection to look for e-mail on the wire. But there had been no software subterfuge and no Internet wiretap. Instead, government lawyers had sent NuVox a letter on October 25, 2004, demanding that the company "preserve" copies of Warshak's future e-mails. The company complied without notifying Warshak, maintaining a private cache of all his messages rather than deleting them when his computer downloaded copies. The feds then returned twice in 2005 with court orders — but not with the much-harder-to-get warrants — to collect the e-mails that had been "preserved" for them.
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Taft wrote the majority decision in the case, one woodenly literal in its interpretation. "The reasonable view is that one who installs in his house a telephone instrument with connecting wires intends to project his voice to those quite outside, and that the wires beyond his house and messages while passing over them are not within the protection of the Fourth Amendment," he wrote. "There was no searching. There was no seizure. The evidence was secured by the use of the sense of hearing and that only. There was no entry of the houses or offices of the defendants."
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