The case had been made partly on the back of Warshak's private e-mails, even though he had taken numerous precautions to secure these. Somehow the feds got their hands on those messages even before they obtained a search warrant. How had it happened? The answer to that question made the Enzyte case a pivotal piece of Internet law — and revealed how investigators had learned to lean on another key pressure point in the Internet ecosystem: third-party servers.
"Prospective" surveillance is generally covered by a different law, the Wiretap Act, and by the much more stringent requirement to obtain a "probable cause" warrant first. Orin Kerr, a leading Internet privacy scholar, notes that "prospective surveillance tends to raise difficult questions of how the communications should be filtered down to the evidence the government seeks" and that "retrospective surveillance usually presents a less severe filtering challenge."
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