Saturday, April 30, 2016

House of Representatives Votes to Provide Increased Privacy Protection to Emails

Last week, the U.S. House of Representatives unanimously passed the Email Privacy Act (H.R. 699), which would require the government to get a probable cause warrant from a judge before obtaining private communications and documents stored online with companies such as Google, Facebook, and Dropbox.

The bill provides a long overdue update to the Electronic Communications Privacy Act (ECPA), first passed in 1986. The bill also codifies the ruling in U.S. v. Warshak, where the Sixth Circuit Court of Appeals  ruled that the government must have a search warrant before it can secretly seize and search emails stored by email service providers.

Contact your Senators to pass this bill!

Sunday, April 17, 2016


Rare enough to happen once a year, this past week saw the Seventh Circuit Court of Appeals reverse the WD of Wisconsin on two separate cases. One involved a reversal of a denial of a Rule 29 motion in a wire fraud case and the other dealt with an illegal search of an apartment building facilitated by the use of drug dogs. The first case was handled by yours truly in which a three-judge panel of the 7th Circuit Court of Appeals in Chicago overturned the conviction of Madison banker Dave Weimert last week Friday, saying no crime was committed and ordered his immediate release from a federal prison facility.

“We rarely reverse a conviction for mail or wire fraud due to insufficient evidence,’’ the judges said in a 2-1 opinion released late Friday.  In this case, however, “there is no evidence that Weimert misled anyone about the material facts or about promises of future action.’’

Weimert was convicted by a jury last year on charges of federal wire fraud for using email and other communications as part of his successful 2009 sale of property in Texas on behalf of Anchor Bank for a price that was $2 million more than Anchor’s target price.  

The three-judge majority decision acknowledged that Weimert showed a “lack of candor’’ during the sale negotiations.  But if “omissions of a buyer’s or seller’s negotiating position’’ is a federal crime, it warned, many negotiations could be considered federal crimes -- an enormous expansion federal prosecutors’ power.

“Federal mail and wire fraud statues encompass a broad range of behavior. Their limits can be difficult to draw with certainty,’’ the majority opinion concluded. “But there are limits.’’

In reality, Dave’s successful negotiation generated badly needed cash for Anchor and removed a huge liability from its books -- and he did it right in the teeth of the nation’s real estate market collapse. As all terms were fully disclosed to Anchor and the buyers, including Dave’s role, it took me a long time just to figure out what Dave was even being charged with.  A full copy of the opinion can be found at 

The second case reversed a district court denial of a motion to suppress.  Taking "Hunter" a drug dog into the second floor of an apartment building was a search violating the holding of Florida v. Jardines, 133 S. Ct. 1409 (2013).  A full text of the opinion in U.S. v. Whitaker can be found at