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Wednesday, December 15, 2010

Smilin' Bob: Defending Your Constitutional Rights

We've all seen "Smilin' Bob" on TV - he sells (or rather used to sell) Enzyte - the male enhancement product (according to past advertising).

Well, its seems old Bob has, no pun intended, fallen on hard times.

But, as all good hero's do he's left us with some goodies.  In this case a positive affirmation that your email will require a court order should someone in the government want to see it.

So just how did Bob go from selling Enzyte to constitutional heroics...?

Here's the story.

Smilin' Bob was created by a company called Berkeley Premium Nutraceuticals, Inc. in 2004 as part of an ad campaign to sell Enzyte.  He, along with "Mrs. Bob," appeared all over TV in commercials "cit[ing] a 2001 independent customer study,  which purported to show that, over a three-month period, 100 English-speaking men who took Enzyte experienced a 12 to 31% increase in the size of their penises" according to this legal opinion.

Berkley was created around 2001 by Steve Warshack and his mother, Harriet Warshack.  The company began with humble beginning selling herbal supplements at sporting events.  Eventually the Enzyte product was created and the company went from 15 employees in 2001 to 1,500 employees and $250 milion USD in sales by 2004 when "Smilin Bob" appeared.

Thought this may seem like a modern "rags to riches" story, it really isn't because the huge run up in sales was, according to court documents, based almost entirely on two forms of fraud (see link to legal opinion above).

First of all, the entire concept of Enzyte was based on a "negative opt in" business model.  Ads in print and in other media promised a free sample of Enzyte.  What was not told to the customer was that opting in for the free sample caused you to receive monthly shipments of Enzyte and, most importantly, to have your credit card billed.

Basically the Warshacks spent a lot of time working out ways to avoid telling the customer that what they were really buying was the "opt in".  Over time a complaints rose to alarming levels but the Warshacks continued to work around requirements placed on them by their credit card providers to notify customers that they were opting in to a monthly billing program.

A number of internal emails discuss this issue and how to avoid telling the customers the truth.  For example, sales people had scripts that told customers ti was an opt in but only after a long winded discussion of the fact that the product was not a birth control product nor was it intended to fight disease (basically attempting to get the customer to "zone out" on the pitch by the time the opt in was discussed).

The second problem was that all of the supposed studies that gave Enzyte its 96% customer satisfaction rating were complete fabrications.

The results of all this were convictions of both Steve and Harriet Warshack.  According to the legal opinion "On August 27, 2008, the defendants were sentenced.  [Steve] Warshak received a sentence of 25 years of imprisonment.  He was also ordered to pay a fine of $93,000 and a special assessment of $9,300.  In addition, he was ordered to surrender $459,540,000 in proceeds-money-judgment forfeiture and $44,876,781.68 in money-laundering-judgment forfeiture.  Harriet was sentenced to 24 months of imprisonment, ordered to pay a special assessment of $800, and held jointly and severally liable for the forfeiture judgments."

The Warshacks appealed this conviction on several grounds.  One of them was that the government had seized approximately 27,000 personal emails of the Warshacks during their investigation which constituted a violation of the Fourth Amendment’s prohibition on unreasonable searches and seizure.  The government counter claimed that it 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."

The three judge panel hearing the appeal found that using the SCA to obtain private emails from an ISP is a clear violation of the Fourth Amendment of the Constitution.  Key to this finding is that 1) the expectation of the Warshacks was that the email was private and 2) email is similar to telephonic and written communications and should be afforded no less protection than those under the Fourth Amendment (warrants are required for obtaining phone and written communications).

Basically the SCA allows the government to ask an ISP to preserve emails it may have in backup or other form.  In this case the appeal judges found that the government had used the SCA as a mechanism to monitor ongoing emails.  The SCA requires a court order for preservation but does not expect government officials to use it to monitor future emails as was done in this case.

The opinion finds that although private emails where captured by the government it was done in "good faith" under various clauses of the SCA and has no direct impact on the legitimate use at trial.

In this light they ruled that email is given the same Fourth Amendment protections as other forms of communications. 

No doubt more cases will be required to bring electronic communications fully into a constitutional framework.  Unfortunately, there well probably be many more "Smilin Bobs" to help that all along.

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