A federal appeals court has just ruled that the ECPA (U.S.C. Section 2703(a), (b), and (c)) -- which was successfully applied in Steve Jackson Games, Inc. v. United States Secret Service -- is no longer applicable when police seize a BBS without showing probable cause that the email messages were criminal in nature.

In GUEST v. LEIS, No 99-4115, 99-4176 (6th Cir. July 02, 2001), government officials have Eleventh Amendment immunity from liability for seizure of materials commingled on a criminal suspect's computer with allegedly criminal evidence despite the Privacy Protection Act, 42 USC 2000aa(a), and third-party standing under the Fourth Amendment.

http://laws.lp.findlaw.com/6th/01a0206p.html

Some interesting excerpts:

"Deputy Sheriff Ausdenmoore... also searched for unlicenced [sic] software" (So local cops are now copyright police?)

"...the SI BBS was used to tap phone lines..." (Huh?)

"There is no genuine issue as to any material fact" (Regarding the Fourth Amendment violation claim -- if they say it isn't so, then it isn't.)

"Home owners would of course have a reasonable expectation of privacy in their homes and in their belongings -- including computers -- inside the home. Bulletin board users would not share the same interest in someone else's house or computer, so they would not be able to challenge the search of the homes and the seizure of the computers as physical objects." (Gee, how many times have we heard government officials use the "private home" analogy when they're demonizing hackers who explore unsecured computer systems?)

"Qualified immunity shields government officials from liability, as well as from suit, if their official conduct 'does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.' If there is such a violation, then we examine "whether the right is so 'clearly established' that a 'reasonable official would understand that what he is doing violates that right.'" (In other words, if a cop says he didn't know he was violating someone's constitutional rights, then he's not held accountable for it!)

"A bank customer, for instance, does not have a legitimate expectation of privacy in the information that he or she has conveyed to the bank; by placing the information under control of a third party, the customer assumes the risk that the bank will convey the information to the government." [therefore] "We conclude that plaintiffs in these cases lack a Fourth Amendment privacy interest in their subscriber information because they communicated it to the systems operators." (So if you provide any information to a systems operator, you have no expectation of privacy for that information?)

"They would lose a legitimate expectation of privacy in an e-mail that had already reached its recipient" (So your email privacy rights are now only in effect during the brief period of time that the message is en route?)

"The seizure of the PPA materials occurred incidentally to the seizure of this evidence pursuant to a valid warrant, and plaintiffs have not shown that the protected materials were searched. We will not find liability under the PPA under these circumstances." (So, even though police admitted to have searched through the contents of the hard drive(s), plaintiffs can't prove that specific data on the drive was searched and therefore have no claim.)