In Warshak's case, the government had used a retrospective process to gain access to prospective messages. The SCA does allow the government to issue "preservation" requests, but these apply only to existing records that might be at risk of deletion; they do not apply to future messages. The Department of Justice's own surveillance manual made this clear even at the time, reminding agents that preservation requests "have no prospective effect....[Preservation] letters can order a provider to preserve records that have already been created, but cannot order providers to preserve records not yet made."


For men with performance issues who are physically healthy, Boyle often prescribes counseling, such as marriage counseling for men with relationship issues or psychiatric help for men who are preoccupied with a problem in penile appearance. For young men with sexual performance problems and no signs of physical problems, Boyle may prescribe counseling and a low dose of Viagra as they work out issues of insecurity. "They need reassurance from a physician that everything is OK," she says.
A three-judge panel of Sixth Circuit appellate judges took up the question in a lengthy opinion handed down on December 14, 2010. To address the Fourth Amendment issue, the judges first had to decide if taking the e-mails from NuVox constituted a "search" at all—with "search" in this case defined as the government infringing upon "an expectation of privacy" that "society is prepared to consider reasonable."
The government obtained convictions, but the case was appealed to the Ninth Circuit in San Francisco and then to the Supreme Court in Washington, DC. Olmstead's key contention was that his Fourth Amendment rights had been violated by the warrantless wiretaps. The government argued, however, that its phone taps had occurred outside Olmstead's office building; therefore, it had not "searched" his person, property, or possessions. No warrant was needed.
Editor's note: A federal appeals court later found the government had violated Warshak's Constitutional rights by forcing his Internet service provider to turn over the emails without getting a search warrant first. This was a very big important precedent for the protection of online privacy. The case against Warshak, however, was not overturned due to the extent of evidence obtained through the physical raid on Berkeley headquarters.
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They didn't convince either a jury or a set of appeals court judges. (As Judge Boggs eventually wrote of the company, "A reasonable juror could easily conclude that Berkeley's sales operation was, for the entire duration of its existence, little more than a colossal fraud.") After a six-week federal trial in early 2008, Warshak was sentenced to twenty-five years in prison, and he had to surrender $459 million in proceeds from the sale of Berkeley products and another $44 million for money laundering. His mother, Harriet, got two years in jail. Berkeley eventually entered bankruptcy.

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