Why is Bob smiling? Because police now need a warrant to check his email (joke stolen from Julian Sanchez).

Thanks to a huge decision out of the Sixth Circuit, your email and the Fourth Amendment just got better acquainted. The police need to get a warrant to take a peek at the contents of someone’s inbox, writes Judge Danny Boggs — once rumored to be on the SCOTUS shortlist — in the court’s opinion (PDF, via a thrilled EFF).

The court says that the 1986 Stored Communications Act, which grants law enforcement access to email older than 180 days old with a simple subpoena or court order, is unconstitutional, since it enables the police to conduct unreasonable searches.

“This is a very big deal,” writes law professor Paul Ohm. “[T]his is the opinion privacy activists and many legal scholars, myself included, have been waiting and calling for, for more than a decade. It may someday be seen as a watershed moment in the extension of our Constitutional rights to the Internet.”

The case that led to the decision dealt with extensions of a different variety. The defendant that challenged the po-po’s warrantless search of his email is Steven Warshak, the mastermind behind Enzyte, a questionable herbal supplement purported to increase the size of a man’s erection. Sometimes, new constitutional protections pop out of the strangest places…

Sex — or the promise of making it better, in this case — sells. In 2004, Warshak’s company did $250 million in sales, thanks mainly to its stimulating supplement. A good part of its growth in popularity was thanks to late-night television commercials featuring “Smilin’ Bob.” “The ‘Smilin’ Bob’ commercials were rife with innuendo and implied that users of Enzyte would become the envy of the neighborhood,” according to the opinion.

In case you didn’t spend much time watching late night programs on Spike, here’s one of the commercials:

Intrigued? You can still get this stuff on Amazon.

Unfortunately, Warshak and his employees were making too hard a sell with Enzyte — by deceiving consumers with false claims about the scientific evidence that Enzyte worked and by forcing big, two-month packages on customers when they requested free samples.

Warshak had an evil but brilliant way to avoid giving out refunds when customers complained. The company required a notarized document from dissatisfied (and presumably dissatisfying) customers, saying there had been “no size increase.” “The admittedly ingenious idea behind the policy was that nobody ‘would actually go and have anything notarized that said that they had a small penis,’” wrote Boggs in the opinion.

For more innuendo-laced commentary, read on at Forbes.com.


Kashmir Hill is an editor emeritus at Above the Law. She’s now at Forbes writing about privacy, and the lack thereof, in the digital age.


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