Full opinion text
BOGGS, J., delivered the opinion of the court, in which McKEAGUE, J., joined. KEITH, J. (pp. 333-36), delivered a separate opinion concurring in the result. OPINION BOGGS, Circuit Judge. Berkeley Premium Nutraceuticals, Inc., was an incredibly profitable company that served as the distributor of Enzyte, an herbal supplement purported to enhance male sexual performance. In this appeal, defendants Steven Warshak (“Warshak”), Harriet Warshak (“Harriet”), and TCI Media, Inc. (“TCI”), challenge their convictions stemming from a massive scheme to defraud Berkeley’s customers. Warshak and Harriet also challenge their sentences, as well as two forfeiture judgments. Given the volume and complexity of the issues presented, we provide the following summary of our holdings: (1) Warshak enjoyed a reasonable expectation of privacy in his emails vis-a-vis NuVox, his Internet Service Provider. See Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Thus, government agents violated his Fourth Amendment rights by compelling NuVox to turn over the emails without first obtaining a warrant based on probable cause. However, because the agents relied in good faith on provisions of the Stored Communications Act, the exclusionary rule does not apply in this instance. See Illinois v. Krull, 480 U.S. 340, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987). (2) The district court did not err in refusing to hold a full-fledged hearing under Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972), when determining whether government agents had improperly used privileged materials seized during a valid search of Berkeley’s headquarters. Kastigar does not apply with full force outside the context of compelled testimony. See United States v. Squillacote, 221 F.3d 542 (4th Cir.2000). (3) The district court did not abuse its discretion by failing to order the government to provide discovery in a different format, as Federal Rule of Criminal Procedure 16 is silent on the issue of the form that discovery must take. Moreover, the government did not duck its obligations under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by providing the defendants with massive quantities of discovery. See United States v. Skilling, 554 F.3d 529 (5th Cir.2009), vacated in part on other grounds, — U.S. -, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010). Finally, the district court did not err in refusing to grant the defendants a continuance so that they could continue examining the discovery materials turned over by the government. (4) The district court did not err in refusing to grant Warshak a new trial based on an alleged Brady violation, as the purportedly exculpatory material did not rise to the level of materiality. See Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). (5) The district court did not err in refusing to grant the defendants a new trial on the basis of prosecutorial misconduct. Though the prosecution did make a number of improper remarks during its rebuttal argument, the remarks were not flagrant. See United States v. Carter, 236 F.3d 777 (6th Cir.2001). (6) The evidence was sufficient to support Warshak’s and Harriet’s respective convictions for conspiracy to commit mail, wire, and bank fraud, in violation of 18 U.S.C. § 1349. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Those convictions are therefore sustained. (7) The evidence was sufficient to support Warshak’s convictions for mail fraud, in violation of 18 U.S.C. § 1341. Those convictions are therefore sustained. (8) The evidence was sufficient to support Warshak’s and Harriet’s respective convictions for bank fraud, in violation of 18 U.S.C. § 1344. Furthermore, the district court did not err in instructing the jury that, under certain circumstances, the government may prove specific intent to defraud a bank by showing specific intent to defraud a third party. See United States v. Reaume, 338 F.3d 577 (6th Cir.2003). Those convictions are therefore sustained. (9) The evidence was sufficient to support Warshak’s conviction for conspiracy to commit access-device fraud, in violation of 18 U.S.C. § 1029. That conviction is sustained. (10) The evidence was sufficient to support Warshak’s and TCI’s respective convictions for money laundering, in violation of 18 U.S.C. §§ 1956, 1957. Those convictions are affirmed. By contrast, the evidence was insufficient to support Harriet’s money-laundering convictions. Those convictions are therefore reversed. (11) The evidence was sufficient to support Warshak’s conviction for conspiracy to obstruct an FTC proceeding, in violation of 18 U.S.C. §§ 371, 1505. As a consequence, that conviction is sustained. (12) The district court did not err in refusing to order the government to reveal whether or not it had conducted any additional surreptitious searches of Warshak’s emails or communications. The discovery afforded by Federal Rule of Criminal Procedure 16 is limited to the evidence referred to in its express provisions, United States v. Presser, 844 F.2d 1275, 1285 (6th Cir.1988), and those provisions do not encompass the information sought by the defendants. (13) The district court failed to provide an adequate explanation of its determination that the defendants should be held accountable for $411 million in losses. See Fed.R.Crim.P. 32(i)(3)(B); United States v. White, 492 F.3d 380, 415 (6th Cir.2007). We therefore vacate Warshak’s sentence and remand. (14) The district court did not abuse its discretion in refusing to admit certain evidence during the forfeiture phase of the trial. Furthermore, the evidence was sufficient to support the proceeds-money and money-laundering forfeiture judgments against Warshak. In addition, the evidence was sufficient to support the proceeds-money forfeiture judgment against Harriet, but it was insufficient to support the money-laundering forfeiture judgment against her. Therefore, the proceeds-money forfeiture judgment is affirmed with respect to both Warshak and Harriet, and the money-laundering money judgment is affirmed with respect to Warshak, but reversed with respect to Harriet. I. STATEMENT OF THE FACTS A. Factual Background In 2001, Steven Warshak (“Warshak”) owned and operated a number of small businesses in the Cincinnati area. One of his businesses was TCI Media, Inc. (“TCI”), which sold advertisements in sporting venues. Warshak also owned a handful of companies that offered a modest line of so-called “nutraceuticals,” or herbal supplements. While the companies bore different names and sold different products, they appear to have been run as a single business, and they were later aggregated to form Berkeley Premium Nutraceuticals, Inc. (“Berkeley”). In Berkeley’s early days, the company’s workforce was relatively minute; the company employed approximately 12 to 15 people, nearly all of whom were Warshak’s friends and family. Among them was his mother, Harriet Warshak (“Harriet”), who processed credit-card payments. As the company grew, Warshak brought on additional employees to facilitate expansion, but he remained extremely “hands-on” with respect to the company’s operations. In 2001, he hired James Teegarden, who eventually became Berkeley’s Chief Operating Officer. Warshak also hired Shelley Kinmon to oversee the company’s sales, later elevating her to the role of Vice-President. In 2002, Sue and Greg Cossman, Warshak’s sister and brother-in-law, joined the company. Sue worked in Customer Care, where she dealt with customer complaints. Greg came in as the President of the company and thereafter functioned in various other capacities. That year also saw the hiring of Sam Grote, who was brought on board to work in the marketing department. To sell its products, Berkeley took orders over the phone, but it also made sales through the mail and over the Internet. Customers purchased products with their credit cards, and their credit-card numbers were entered into a database along with other information. During sales calls, representatives would read from sales scripts, which listed the major points to cover during the transaction. Shelley Kinmon testified that Warshak had the final word on the content of the scripts. Often, the scripts would include a description of the desired product, as well as language intended to persuade more pliant customers to make additional purchases. In the latter half of 2001, Berkeley launched Enzyte, its flagship product. At the time of its launch, Enzyte was purported to increase the size of a man’s erection. The product proved tremendously popular, and business rose sharply. By 2004, demand for Berkeley’s products had grown so dramatically that the company employed 1500 people, and the call center remained open throughout the night, taking orders at breakneck speed. Berkeley’s line of supplements also expanded, ballooning from approximately four products to around thirteen. By year’s end, Berkeley’s annual sales topped out at around $250 million, largely on the strength of Enzyte. 1. Advertising The popularity of Enzyte appears to have been due in large part to Berkeley’s aggressive advertising campaigns. The vast majority of the advertising — approximately 98% — was conducted through television spots. Around 2004, network television was saturated with Enzyte advertisements featuring a character called “Smilin’ Bob,” whose trademark exaggerated smile was presumably the result of Enzyte’s efficacy. The “Smilin’ Bob” commercials were rife with innuendo and implied that users of Enzyte would become the envy of the neighborhood. In addition to the television commercials, however, there were also advertisements in other media, such as print and radio. In 2001, just after Enzyte’s premiere, advertisements appeared in a number of men’s interest magazines. At Warshak’s direction, those advertisements cited 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. The 2001 study was also referenced in radio advertisements and appeared on the company’s website, as well as in brochures and sales calls. James Teegarden later testified that the survey was bogus. He stated that, prior to the appearance of the advertisements, Warshak instructed him to create a spreadsheet and to fill it with fabricated data. Teegarden testified that he plucked the numbers out of the air and generated the spreadsheet over a twenty-four hour period. A number of advertisements also indicated that Enzyte boasted a 96% customer satisfaction rating. Teegarden testified that that statistic, too, was totally spurious. Before the claim began showing up in Berkeley’s literature, Warshak had asked him to harvest 500 names from the customer database and to “mark an ‘X’ by either satisfied or very satisfied on say 475 of those.” As for the remaining 25, Tee-garden “was to put not satisfied.” Thereafter, the customer-satisfaction statistic cropped up in Berkeley’s print advertisements and in the “sales pitches, brochures, [and on the] Internet.” Finally, numerous print and radio advertisements boasted that Enzyte was the brainchild of reputable doctors with impressive educational pedigrees. According to the ads, “Enzyte was developed by Dr. Fredrick Thomkins, a physician with a biology degree from Stanford and Dr. Michael Moore, a leading urologist from Harvard.” The ads also stated that the doctors had collaborated for thirteen years in developing a supplement designed to “stretch and elongate.” In reality, the doctors were just as fictitious as “Smilin’ Bob.” Investigators who contacted Stanford and Harvard learned that neither man existed. 2. The Auto-Ship Program The “life blood” of the business was its auto-ship program, which was instituted in 2001, shortly before Enzyte hit the market. The auto-ship program was a continuity or negative-option program, in which a customer would order a free trial of a product and then continue to receive additional shipments of that product until he opted out. Before each new continuity shipment arrived on the customer’s doorstep, a corresponding charge would appear on his credit-card statement. The shipments and charges would continue until the customer decided to withdraw from the program, which required the customer to notify the company. In the early days of the auto-ship program, customers who ordered products over the phone were not told that they were being enrolled. From August 2001 to at least the end of December 2002, customers were simply added to the program at the time of the initial sale without any indication that they would be on the hook for additional charges. Apparently, products were shipped with literature explaining the program, but no authorization was sought in advance of the shipment. According to Teegarden, Warshak explained that the auto-ship program was never mentioned because “nobody would sign up.” If nobody signed up, “you couldn’t make revenue.” This policy resulted in a substantial volume of complaints, both to Berkeley and to outside organizations. In October 2002, the Better Business Bureau (“BBB”) contacted Berkeley and indicated that more than 1,500 customers had called to voice their consternation. Because of the complaints, Berkeley’s sales scripts and website began to include some language disclosing the auto-ship program. A number of internal emails indicate that sales representatives were required to read the disclosure language and faced punishment if they failed to do so. To monitor the interactions between representatives and customers, Berkeley installed a recording system for all incoming calls. However, as a number of Berkeley insiders testified, the compulsory disclosure language was not always read, and it was designed not to work. Shelley Kinmon testified that the disclosure of the continuity shipments was only made after the customer had placed his order. In other words, the sales representative had already taken the customer’s credit-card information when auto-ship was mentioned. Also, the disclosures were deliberately made with haste, and they were placed after unrelated language that was intended to divert or deaden the customer’s attention. In the case of Enzyte, sales reps were instructed to lead into the disclosure language by stating that “the product is not a contraceptive nor will it prevent or treat any sexually transmitted disease.” According to Teegarden, the thinking was that, “if we started off with a statement about a contraceptive, something other than what it was, that people wouldn’t really listen to what we were disclosing to them.” Moreover, disclosure of the auto-ship program was sometimes irrelevant. For example, in November 2003, Berkeley hired a company called West to handle “sales calls that were from ... Avlimil or Enzyte advertisements.” During the calls, West’s representatives asked customers if they wanted to be enrolled in the auto-ship program, and over 80% of customers declined. When Warshak learned what was happening, he issued instructions to “take those customers, even if they decline[d], even if they said no to the Auto-Ship program, go ahead and put them on the Auto-Ship program.” A subsequent email between Berkeley employees indicated that “all [West] customers, whether they know it or not, are going on [auto-ship].” As a result, numerous telephone orders resulted in unauthorized continuity shipments. However, not all of Berkeley’s auto-ship issues related to the telephone. Many Berkeley sales were the result of orders placed on the Internet, where disclosure of the auto-ship program was inconsistent. In 2001, when Berkeley was in its infancy, the company’s websites contained no indication that customers would be enrolled in the program. Thereafter, disclosures were placed on the websites, but the disclosures would “appear[ ], disappear[ ], and chang[e].” In 2003, for instance, disclosure language that had been added to Berkeley’s Avlimil website was removed because sales had been “drastically affected.” Additionally, the language that did appear was often confusing and contained non sequiturs. By July 2004, the complaints arising from Berkeley’s auto-ship program had not slowed, so the President of the BBB reached out to Berkeley, sending a letter directly to Warshak. The purpose of the letter was to express “serious concerns about the number of complaints that [the BBB] had received.” The complaints “related to a single issue, which was the [auto-ship] program.” According to the President of the BBB, the organization “had asked on numerous occasions that [Berkeley] consider dropping [the program], and got no positive response.” 3. The Merchant Banks In order for Berkeley’s business to operate, it was essential that the company be able to accept credit cards as a form of payment. To process credit-card transactions, Berkeley obtained lines of credit from several merchant banks. The relationships between Berkeley and the merchant banks involved intermediaries known as credit-card processors. Often, the processors had contractual agreements with the merchant banks, and the processors were the ones who set up the credit-card processing arrangements with Berkeley. Nonetheless, when Berkeley applied for a merchant account with a given processor, the applications were passed along to the banks. Furthermore, either the banks or the processors could terminate Berkeley’s merchant accounts. In early 2002, Warshak’s merchant account at the Bank of Kentucky was terminated for excessive “chargebacks.” A chargeback occurs when a customer calls the credit card company directly and contests or disputes a charge. Merchant banks — and credit-card processors — will generally not do business with merchants that experience high volumes of charge-backs, as those merchants present a greater financial risk. In determining whether a merchant is experiencing excessive chargebacks, the banks refer to a figure known as the chargeback ratio, which is simply the percentage of transactions in a given 30-day period that result in a chargeback. For example, if a company conducts 100 credit-card transactions and one chargeback results, the company will have a chargeback ratio of 1%. Typically, if a merchant experiences more than one chargeback per hundred transactions, its chargeback ratio is deemed too high, resulting in fines and, eventually, termination of its accounts, either by the merchant bank or the credit-card processor. Following the termination of the merchant account at the Bank of Kentucky, the company applied for merchant accounts with a number of other banks. In some instances, the applications, which often bore Harriet’s signature, falsely listed her as the CEO and 100% owner of the company. In other instances, Warshak would complete the applications in his own name but falsely claim that he had never had a merchant account terminated. These prevarications were included in the applications because the prior termination would likely diminish Berkeley’s chances of securing the services of other processors. Despite its history with the Bank of Kentucky, Berkeley was able to land (or retain) merchant accounts with several processors. However, due to the auto-ship program and an extremely onerous refund policy, Berkeley was repeatedly at risk of crossing the critical 1% chargeback threshold. At company meetings, the chargeback ratio was a frequent topic of discussion, as was the possibility that Berkeley’s accounts would be terminated. To prevent that from happening, a number of strategies were devised to artificially inflate the number of sales transactions and thus the denominator of the charge-back ratio, reducing that crucial ratio. One strategy was called “double-dinging.” That practice involved splitting a single transaction into two, thereby driving up the number of transactions and diminishing the chargeback ratio. A double-ding might entail carving a $59.95 charge into a $54.95 charge for the product itself and a $5.00 charge for shipping. Warshak directed that virtually all sales be double-dinged, and by 2003, triple-dinging was initiated. Another way the company depressed the chargeback ratio was to make numerous charges to Warshak’s personal credit cards. At Warshak’s behest, Berkeley employees would ring up $1.00 charges on each of his credit cards until their limits were reached. Apparently, the thinking was that this torrent of additional transactions would dilute the number of charge-backs and keep the ratio under 1%. The same thinking led the company to charge and then refund the credit cards of randomly selected customers. The charges were made without authorization, and if anyone complained about the odd activity on his card, he was told that it was the result of a computer glitch. Through the use of these techniques and others, the company was able to stave off termination of its merchant-bank accounts. B. Procedural History In September 2006, a grand jury sitting-in the Southern District of Ohio returned a 112-count indictment charging Warshak, Harriet, TCI, and several others with various crimes related to Berkeley’s business. Warshak was charged with conspiracy to commit mail, wire, and bank fraud (Count 1); mail fraud (Counts 2-13); making false statements to banks (Counts 14,16-22, 24-26, 28); bank fraud (Counts 15, 23, 27); conspiracy to commit and attempt to commit access-device fraud (Count 29); conspiracy to commit money laundering (Count 34); money laundering (Counts 32-98, 102-106, 108); conspiracy to commit misbranding (Count 109); misbranding (Count 110); and, lastly, conspiracy to obstruct a Federal Trade Commission (“FTC”) proceeding (Count 112). Harriet was charged with conspiracy to commit mail, wire, and bank fraud (Count 1); bank fraud (Count 27); making false statements to a bank (Count 28); conspiracy to commit money laundering (Counts 30-31); and money laundering (Counts 99-101, 107). TCI was charged with money laundering (Counts 57-58, 60-73, 79, 83, 91-93). Before trial, numerous motions were filed. First, Warshak moved to exclude thousands of emails that the government obtained from his Internet Service Providers. That motion was denied. Warshak also moved to bar the government from using any evidence “derived through improper access to privileged attorney-client communications.” Appellant’s Br. at 42. Following a “Kastigar-like” evidentiary hearing at which governmental inspectors testified that they did not make use of any privileged materials, the district court denied the motion. In addition, the defendants requested a continuance, which was denied. Over fifteen months later, in January 2008, the case proceeded to trial. Approximately six weeks later, the trial ended and the defendants were convicted of the majority of the charges. Warshak was acquitted of Counts 14-22, 24-26, and 28, which charged him with making false statements to banks, and he was also acquitted of Counts 109-110, which charged him with misbranding offenses. Harriet was acquitted of Count 28, which alleged that she made false statements to a bank. She was convicted on Counts 27, 30-31, 99-101, and 107. As soon as the trial was over, a forfeiture hearing was held, during which the jury heard additional evidence. At the hearing, the defendants attempted to introduce certain evidence that many of Berkeley’s sales were legitimate, but the district court ruled that the evidence was irrelevant. When the hearing concluded, the jury found that the government had established the requisite nexus between certain assets and the crimes of both fraud and money laundering. On August 27, 2008, the defendants were sentenced. 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. TCI was sentenced to five years of probation and ordered to pay a fine of $160,000 and a special assessment of $6,400. Following a series of unsuccessful post-trial motions, the defendants timely appealed. II. ANALYSIS A. The Search & Seizure of Warshak’s Emails Warshak argues that the government’s warrantless, ex parte seizure of approximately 27,000 of his private emails constituted a violation of the Fourth Amendment’s prohibition on unreasonable searches and seizures. The government counters that, even if government agents violated the Fourth Amendment in obtaining the emails, they 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. We find that the government did violate Warshak’s Fourth Amendment rights by compelling his Internet Service Provider (“ISP”) to turn over the contents of his emails. However, we agree that agents relied on the SCA in good faith, and therefore hold that reversal is unwarranted. 1. The Stored Communications Act The Stored Communications Act (“SCA”), 18 U.S.C. §§ 2701 et seq., “permits a ‘governmental entity’ to compel a service provider to disclose the contents of [electronic] communications in certain circumstances.” Warshak II, 532 F.3d at 523. As this court explained in Warshak II: Three relevant definitions bear on the meaning of the compelled-diselosure provisions of the Act. “[Electronic communication service[s]” permit “users ... to send or receive wire or electronic communications,” [18 U.S.C.] § 2510(15), a definition that covers basic e-mail services, see Patricia L. Bellia et ah, Cyberlaw: Problems of Policy and Jurisprudence in the Information Age 584 (2d ed. 2004). “[Electronic storage” is “any temporary, intermediate storage of a wire or electronic communication ... and ... any storage of such communication by an electronic communication service for purposes of backup protection of such communication.” 18 U.S.C. § 2510(17). “[RJemote computing serviced” provide “computer storage or processing services” to customers, id. § 2711(2), and are designed for longer-term storage, see Orín S. Kerr, A User’s Guide to the Stored Communications Act, and a Legislator’s Guide to Amending It, 72 Geo. Wash. L.Rev. 1208, 1216 (2004). The compelled-disclosure provisions give different levels of privacy protection based on whether the e-mail is held with an electronic communication service or a remote computing service and based on how long the e-mail has been in electronic storage. The government may obtain the contents of e-mails that are “in electronic storage” with an electronic communication service for 180 days or less “only pursuant to a warrant.” 18 U.S.C. § 2703(a). The government has three options for obtaining communications stored with a remote computing service and communications that have been in electronic storage with an electronic service provider for more than 180 days: (1) obtain a warrant; (2) use an administrative subpoena; or (3) obtain a court order under § 2703(d). Id. § 2703(a), (b). 532 F.3d at 523-24 (some alterations in original). 2. Factual Background Email was a critical form of communication among Berkeley personnel. As a consequence, Warshak had a number of email accounts with various ISPs, including an account with NuVox Communications. In October 2004, the government formally requested that NuVox prospectively preserve the contents of any emails to or from Warshak’s email account. The request was made pursuant to 18 U.S.C. § 2703(f) and it instructed NuVox to preserve all future messages. NuVox acceded to the government’s request and began preserving copies of Warshak’s incoming and outgoing emails — copies that would not have existed absent the prospective preservation request. Per the government’s instructions, Warshak was not informed that his messages were being archived. In January 2005, the government obtained a subpoena under § 2703(b) and compelled NuVox to turn over the emails that it had begun preserving the previous year. In May 2005, the government served NuVox with an ex parte court order under § 2703(d) that required NuVox to surrender any additional email messages in Warshak’s account. In all, the government compelled NuVox to reveal the contents of approximately 27,000 emails. Warshak did not receive notice of either the subpoena or the order until May 2006. 3. The Fourth Amendment The Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause.... ” U.S. Const, amend. IV. The fundamental purpose of the Fourth Amendment “is to safeguard the privacy and security of individuals against arbitrary invasions by government officials.” Camara v. Mun. Ct., 387 U.S. 523, 528, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967); see Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 613-14, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989) (“The [Fourth] Amendment guarantees the privacy, dignity, and security of persons against certain arbitrary and invasive acts by officers of the Government or those acting at their direction.”). Not all government actions are invasive enough to implicate the Fourth Amendment. “The Fourth Amendment’s protections hinge on the occurrence of a ‘search,’ a legal term of art whose history is riddled with complexity.” Widgren v. Maple Grove Twp., 429 F.3d 575, 578 (6th Cir.2005). A “search” occurs when the government infringes upon “an expectation of privacy that society is prepared to consider reasonable.” United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984). This standard breaks down into two discrete inquiries: “first, has the [target of the investigation] manifested a subjective expectation of privacy in the object of the challenged search? Second, is society willing to recognize that expectation as reasonable?” California v. Ciraolo, 476 U.S. 207, 211, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986) (citing Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979)). Turning first to the subjective component of the test, we find that Warshak plainly manifested an expectation that his emails would be shielded from outside scrutiny. As he notes in his brief, his “entire business and personal life was contained within the ... emails seized.” Appellant’s Br. at 39-40. Given the often sensitive and sometimes damning substance of his emails, we think it highly unlikely that Warshak expected them to be made public, for people seldom unfurl their dirty laundry in plain view. See, e.g., United States v. Maxwell, 45 M.J. 406, 417 (C.A.A.F.1996) (“[T]he tenor and content of e-mail conversations between appellant and his correspondent, ‘Launehboy,’ reveal a[n] ... expectation that the conversations were private.”). Therefore, we conclude that Warshak had a subjective expectation of privacy in the contents of his emails. The next question is whether society is prepared to recognize that expectation as reasonable. See Smith, 442 U.S. at 740, 99 S.Ct. 2577. This question is one of grave import and enduring consequence, given the prominent role that email has assumed in modern communication. Cf. Katz, 389 U.S. at 352, 88 S.Ct. 507 (suggesting that the Constitution must be read to account for “the vital role that the public telephone has come to play in private communication”). Since the advent of email, the telephone call and the letter have waned in importance, and an explosion of Internet-based communication has taken place. People are now able to send sensitive and intimate information, instantaneously, to friends, family, and colleagues half a world away. Lovers exchange sweet nothings, and businessmen swap ambitious plans, all with the click of a mouse button. Commerce has also taken hold in email. Online purchases are often documented in email accounts, and email is frequently used to remind patients and clients of imminent appointments. In short, “account” is an apt word for the conglomeration of stored messages that comprises an email account, as it provides an account of its owner’s life. By obtaining access to someone’s email, government agents gain the ability to peer deeply into his activities. Much hinges, therefore, on whether the government is permitted to request that a commercial ISP turn over the contents of a subscriber’s emails without triggering the machinery of the Fourth Amendment. In confronting this question, we take note of two bedrock principles. First, the very fact that information is being passed through a communications network is a paramount Fourth Amendment consideration. See ibid.; United States v. U.S. Dist. Court, 407 U.S. 297, 313, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972) (“[T]he broad and unsuspected governmental incursions into conversational privacy which electronic surveillance entails necessitate the application of Fourth Amendment safeguards.”). Second, the Fourth Amendment must keep pace with the inexorable march of technological progress, or its guarantees will wither and perish. See Kyllo v. United States, 533 U.S. 27, 34, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001) (noting that evolving technology must not be permitted to “erode the privacy guaranteed by the Fourth Amendment”); see also Orín S. Kerr, Applying the Fourth Amendment to the Internet: A General Approach, 62 Stan. L.Rev. 1005, 1007 (2010) (arguing that “the differences between the facts of physical space and the facts of the Internet require courts to identify new Fourth Amendment distinctions to maintain the function of Fourth Amendment rules in an online environment”). With those principles in mind, we begin our analysis by considering the manner in which the Fourth Amendment protects traditional forms of communication. In Katz, the Supreme Court was asked to determine how the Fourth Amendment applied in the context of the telephone. There, government agents had affixed an electronic listening device to the exterior of a public phone booth, and had used the device to intercept and record several phone conversations. See 389 U.S. at 348, 88 S.Ct. 507. The Supreme Court held that this constituted a search under the Fourth Amendment, see id. at 353, 88 S.Ct. 507, notwithstanding the fact that the telephone company had the capacity to monitor and record the calls, see Smith, 442 U.S. at 746-47, 99 S.Ct. 2577 (Stewart, J., dissenting). In the eyes of the Court, the caller was “surely entitled to assume that the words he utter[ed] into the mouthpiece w[ould] not be broadcast to the world.” Katz, 389 U.S. at 352, 88 S.Ct. 507. The Court’s holding in Katz has since come to stand for the broad proposition that, in many contexts, the government infringes a reasonable expectation of privacy when it surreptitiously intercepts a telephone call through electronic means. Smith, 442 U.S. at 746, 99 S.Ct. 2577 (Stewart, J., dissenting) (“[S]ince Katz, it has been abundantly clear that telephone conversations are fully protected by the Fourth and Fourteenth Amendments.”). Letters receive similar protection. See Jacobsen, 466 U.S. at 114, 104 S.Ct. 1652 (“Letters and other sealed packages are in the general class of effects in which the public at large has a legitimate expectation of privacy[.]”); Ex Parte Jackson, 96 U.S. 727, 733, 24 L.Ed. 877 (1877). While a letter is in the mail, the police may not intercept it and examine its contents unless they first obtain a warrant based on probable cause. Ibid. This is true despite the fact that sealed letters are handed over to perhaps dozens of mail carriers, any one of whom could tear open the thin paper envelopes that separate the private words from the world outside. Put another way, trusting a letter to an intermediary does not necessarily defeat a reasonable expectation that the letter will remain private. See Katz, 389 U.S. at 351, 88 S.Ct. 507 (“[W]hat [a person] seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.”). Given the fundamental similarities between email and traditional forms of communication, it would defy common sense to afford emails lesser Fourth Amendment protection. See Patricia L. Bellia & Susan Freiwald, Fourth Amendment Protection for Stored E-Mail, 2008 U. Chi. Legal F. 121, 135 (2008) (recognizing the need to “eliminate the strangely disparate treatment of mailed and telephonic communications on the one hand and electronic communications on the other”); City of Ontario v. Quon, — U.S. -, 130 S.Ct. 2619, 2631, 177 L.Ed.2d 216 (2010) (implying that “a search of [an individual’s] personal e-mail account” would be just as intrusive as “a wiretap on his home phone line”); United States v. Forrester, 512 F.3d 500, 511 (9th Cir.2008) (holding that “[t]he privacy interests in [mail and email] are identical”). Email is the technological scion of tangible mail, and it plays an indispensable part in the Information Age. Over the last decade, email has become “so pervasive that some persons may consider [it] to be [an] essential means or necessary instrument! ] for self-expression, even self-identification.” Quon, 130 S.Ct. at 2630. It follows that email requires strong protection under the Fourth Amendment; otherwise, the Fourth Amendment would prove an ineffective guardian of private communication, an essential purpose it has long been recognized to serve. See U.S. Dist. Court, 407 U.S. at 313, 92 S.Ct. 2125; United States v. Waller, 581 F.2d 585, 587 (6th Cir.1978) (noting the Fourth Amendment’s role in protecting “private communications”). As some forms of communication begin to diminish, the Fourth Amendment must recognize and protect nascent ones that arise. See Warshak I, 490 F.3d at 473 (“It goes without saying that like the telephone earlier in our history, e-mail is an ever-increasing mode of private communication, and protecting shared communications through this medium is as important to Fourth Amendment principles today as protecting telephone conversations has been in the past.”). If we accept that an email is analogous to a letter or a phone call, it is manifest that agents of the government cannot compel a commercial ISP to turn over the contents of an email without triggering the Fourth Amendment. An ISP is the intermediary that makes email communication possible. Emails must pass through an ISP’s servers to reach their intended recipient. Thus, the ISP is the functional equivalent of a post office or a telephone company. As we have discussed above, the police may not storm the post office and intercept a letter, and they are likewise forbidden from using the phone system to make a clandestine recording of a telephone call — unless they get a warrant, that is. See Jacobsen, 466 U.S. at 114, 104 S.Ct. 1652; Katz, 389 U.S. at 353, 88 S.Ct. 507. It only stands to reason that, if government agents compel an ISP to surrender the contents of a subscriber’s emails, those agents have thereby conducted a Fourth Amendment search, which necessitates compliance with the warrant requirement absent some exception. In Warshak I, the government argued that this conclusion was improper, pointing to the fact that NuVox contractually reserved the right to access Warshak’s emails for certain purposes. While we acknowledge that a subscriber agreement might, in some cases, be sweeping enough to defeat a reasonable expectation of privacy in the contents of an email account, see Warshak I, 490 F.3d at 473; Warshak II, 532 F.3d at 526-27, we doubt that will be the case in most situations, and it is certainly not the case here. As an initial matter, it must be observed that the mere ability of a third-party intermediary to access the contents of a communication cannot be sufficient to extinguish a reasonable expectation of privacy. In Katz, the Supreme Court found it reasonable to expect privacy during a telephone call despite the ability of an operator to listen in. See Smith, 442 U.S. at 746-47, 99 S.Ct. 2577 (Stewart, J., dissenting). Similarly, the ability of a rogue mail handler to rip open a letter does not make it unreasonable to assume that sealed mail will remain private on its journey across the country. Therefore, the threat or possibility of access is not decisive when it comes to the reasonableness of an expectation of privacy. Nor is the right of access. As the Electronic Frontier Foundation points out in its amicus brief, at the time Katz was decided, telephone companies had a right to monitor calls in certain situations. Specifically, telephone companies could listen in when reasonably necessary to “protect themselves and their properties against the improper and illegal use of their facilities.” Bubis v. United States, 384 F.2d 643, 648 (9th Cir.1967). In this case, the NuVox subscriber agreement tracks that language, indicating that “NuVox may access and use individual Subscriber information in the operation of the Service and as necessary to protect the Service.” Acceptable Use Policy, available at http:// business.windstream.com/Legal/acceptable Use.htm (last visited Aug. 12, 2010). Thus, under Katz, the degree of access granted to NuVox does not dimmish the reasonableness of Warshak’s trust in the privacy of his emails. Our conclusion finds additional support in the application of Fourth Amendment doctrine to rented space. Hotel guests, for example, have a reasonable expectation of privacy in their rooms. See United States v. Allen, 106 F.3d 695, 699 (6th Cir.1997). This is so even though maids routinely enter hotel rooms to replace the towels and tidy the furniture. Similarly, tenants have a legitimate expectation of privacy in their apartments. See United States v. Washington, 573 F.3d 279, 284 (6th Cir.2009). That expectation persists, regardless of the incursions of handymen to fix leaky faucets. Consequently, we are convinced that some degree of routine access is hardly dispositive with respect to the privacy question. Again, however, we are unwilling to hold that a subscriber agreement will never be broad enough to snuff out a reasonable expectation of privacy. As the panel noted in Warshak I, if the ISP expresses an intention to “audit, inspect, and monitor” its subscriber’s emails, that might be enough to render an expectation of privacy unreasonable. See 490 F.3d at 472-73 (quoting United States v. Simons, 206 F.3d 392, 398 (4th Cir.2000)). But where, as here, there is no such statement, the ISP’s “control over the [emails] and ability to access them under certain limited circumstances will not be enough to overcome an expectation of privacy.” Id. at 473. We recognize that our conclusion may be attacked in light of the Supreme Court’s decision in United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976). In Miller, the Supreme Court held that a bank depositor does not have a reasonable expectation of privacy in the contents of bank records, checks, and deposit slips. Id. at 442, 96 S.Ct. 1619. The Court’s holding in Miller was based on the fact that bank documents, “including financial statements and deposit slips, contain only information voluntarily conveyed to the banks and exposed to their employees in the ordinary course of business.” Ibid. The Court noted, The depositor takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government.... [T]he Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed. Id. at 443, 96 S.Ct. 1619 (citations omitted). But Miller is distinguishable. First, Miller involved simple business records, as opposed to the potentially unlimited variety of “confidential communications” at issue here. See ibid. Second, the bank depositor in Miller conveyed information to the bank so that the bank could put the information to use “in the ordinary course of business.” Ibid. By contrast, Warshak received his emails through NuVox. NuVox was an intermediary, not the intended recipient of the emails. See Bellia & Freiwald, Stored E-Mail, 2008 U. Chi. Legal F. at 165 (“[W]e view the best analogy for this scenario as the cases in which a third party carries, transports, or stores property for another. In these cases, as in the stored e-mail case, the customer grants access to the ISP because it is essential to the customer’s interests.”). Thus, Miller is not controlling. Accordingly, we hold that a subscriber enjoys a reasonable expectation of privacy in the contents of emails “that are stored with, or sent or received through, a commercial ISP.” Warshak I, 490 F.3d at 473; see Forrester, 512 F.3d at 511 (suggesting that “[t]he contents [of email messages] may deserve Fourth Amendment protection”). The government may not compel a commercial ISP to turn over the contents of a subscriber’s emails without first obtaining a warrant based on probable cause. Therefore, because they did not obtain a warrant, the government agents violated the Fourth Amendment when they obtained the contents of Warshak’s emails. Moreover, to the extent that the SCA purports to permit the government to obtain such emails warrantlessly, the SCA is unconstitutional. 4. Good-Faith Reliance Even though the government’s search of Warshak’s emails violated the Fourth Amendment, the emails are not subject to the exclusionary remedy if the officers relied in good faith on the SCA to obtain them. See Krull, 480 U.S. at 349-50, 107 S.Ct. 1160. In Krull, the Supreme Court noted that the exclusionary rule’s purpose of deterring law enforcement officers from engaging in unconstitutional conduct would not be furthered by holding officers accountable for mistakes of the legislature. Ibid. Thus, even if a statute is later found to be unconstitutional, an officer “cannot be expected to question the judgment of the legislature.” Ibid. However, an officer cannot “be said to have acted in good-faith reliance upon a statute if its provisions are such that a reasonable officer should have known that the statute was unconstitutional.” Id. at 355, 107 5. Ct. 1160. Naturally, Warshak argues that the provisions of the SCA at issue in this case were plainly unconstitutional. He argues that any reasonable law enforcement officer would have understood that a warrant based on probable cause would be required to compel the production of private emails. In making this argument, he leans heavily on Warshak I, which opined that the SCA permits agents to engage in searches “that clearly do not comport with the Fourth Amendment.” 490 F.3d at 477. However, we disagree that the SCA is so conspicuously unconstitutional as to preclude good-faith reliance. As we noted in Warshak II, “[t]he Stored Communications Act has been in existence since 1986 and to our knowledge has not been the subject of any successful Fourth Amendment challenges, in any context, whether to § 2703(d) or to any other provision.” 532 F.3d at 531. Furthermore, given the complicated thicket of issues that we were required to navigate when passing on the constitutionality of the SCA, it was not plain or obvious that the SCA was unconstitutional, and it was therefore reasonable for the government to rely upon the SCA in seeking to obtain the contents of Warshak’s emails. But the good-faith reliance inquiry does not end with the facial validity of the statute at issue. In Krull, the Supreme Court hinted that the good-faith exception does not apply if the government acted “outside the scope of the statute” on which it purported to rely. 480 U.S. at 360 n. 17, 107 S.Ct. 1160. It should be noted that this portion of the Krull Court’s opinion was merely dicta, and it appears that we have yet to pass on the question. However, it seems evident that an officer’s failure to adhere to the boundaries of a given statute should preclude him from relying upon it in the face of a constitutional challenge. Once the officer steps outside the scope of an unconstitutional statute, the mistake is no longer the legislature’s, but the officer’s. See ibid. (“In that context, the relevant actors are not legislators or magistrates, but police officers who concededly are engaged in the often competitive enterprise of ferreting out crime.” (citation and internal quotation marks omitted)). Therefore, use of the exclusionary rule is once again efficacious in deterring officers from engaging in conduct that violates the Constitution. Ibid. Warshak argues that the government violated several provisions of the SCA and should therefore be precluded from arguing good-faith reliance. First, Warshak argues that the government violated the SCA’s notice provisions. Under § 2703(b)(1)(B), the government must provide notice to an account holder if it seeks to compel the disclosure of his emails through either a § 2703(b) subpoena or a § 2703(d) order. However, § 2705 permits the government to delay notification in certain situations. The initial period of delay is 90 days, but the government may seek to extend that period in 90-day increments. In this case, the government issued both a § 2703(b) subpoena and a § 2703(d) order to NuVox, seeking disclosure of Warshak’s emails. At the time, the government made the. requisite showing that notice should be delayed. However, the government did not seek to renew the period of delay. In all, the government failed to inform Warshak of either the subpoena or the order for over a year. Conceding that it violated the notice provisions, the government argues that such violations are irrelevant to the issue of whether it reasonably relied on the SCA in obtaining the contents of Warshak’s emails. We agree. As the government notes, the violations occurred after the emails had been obtained. Thus, the mistakes at issue had no bearing on the constitutional violations. Because the exclusionary rule was designed to deter constitutional violations, we decline to invoke it in this situation. But Warshak does not hang his hat exclusively on the government’s violations of the SCA’s notice provisions. He also argues that the government exceeded its authority under another SCA provision— § 2703(f) — by requesting NuVox to engage in prospective preservation of his future emails. Under § 2703(f), “[a] provider of wire or electronic communication services or a remote computing service, upon the request of a governmental entity, shall take all necessary steps to preserve records and other evidence in its possession pending the issuance of a court order or other process.” 18 U.S.C. § 2703(f) (emphasis added). Warshak argues that this statute permits only retrospective preservation — in other words, preservation of emails already in existence. He notes that the Department of Justice (“DOJ”) generally agrees with his construction of the statute, pointing to the DOJ’s own computer-surveillance manual, which states: “[Section] 2703(f) letters should not be used prospectively to order providers to preserve records not yet created. If agents want providers to record information about future electronic communications, they should comply with the [Wiretap Act and the Pen/Trap statute].” Ultimately, however, this statutory violation, whether it occurred or not, is irrelevant to the issue of good-faith reliance. The question here is whether the government relied in good faith on § 2703(b) and § 2703(d) to obtain copies of Warshak’s emails. True, the government might not have been able to gain access to the emails without the prospective preservation request, as it was NuYox’s practice to delete all emails once they were downloaded to the account holder’s computer. Thus, in a sense, the government’s use of § 2703© was a but-for cause of the constitutional violation. But the actual violation at issue was obtaining the emails, and the government did not rely on § 2703® specifically to do that. Instead, the government relied on § 2703(b) and § 2703(d). The proper inquiry, therefore, is whether the government violated either of those provisions, and the preservation request is of no consequence to that inquiry. Warshak’s next argument is that the government violated § 2703(d) by failing to provide any particularized factual basis when seeking an order for disclosure. Under § 2703(d), such an order “shall issue only if the governmental entity offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication ... are relevant and material to an ongoing criminal investigation.” To the extent that he is arguing that the government’s application was insufficient, Warshak is wrong. The government’s application indicated that it was “investigating a complex, large-scale mail and wire fraud operation based in Cincinnati, Ohio.” The application also indicated that “interviews of current and former employees of the target company suggest that electronic mail is a vital communication tool that has been used to perpetuate the fraudulent conduct.” Additionally, the application observed that “various sources [have verified] that NuVox provides electronic communications services to certain individual(s) [under] investigation.” In light of these statements, it is clear that the application was, in fact, supported by specific and articulable facts, especially given the diminished standard that applies to § 2703(d) applications. See United States v. Perrine, 518 F.3d 1196, 1202 (10th Cir.2008) (noting that “the ‘specific and articulable facts’ standard derives from the Supreme Court’s decision in Terry ”); Warshak I, 490 F.3d at 463 (“The parties agree that the standard of proof for a court order — ‘specific and articulable facts showing that there are reasonable grounds to believe that the contents ... or records ... are relevant and material to an ongoing criminal investigation’ — falls short of probable cause.”). Finally, Warshak argues that a finding of good-faith reliance is improper because the government presented the magistrate with an erroneous definition of the term “electronic storage.” As noted above, if an email is in electronic storage for less than 180 days, the government may not compel its disclosure without a warrant. 18 U.S.C. § 2703(a). In applying for the subpoena and the order that eventually resulted in the disclosure of Warshak’s NuVox emails, the government suggested to the magistrate that an email is not in electronic storage if it has already been “accessed, viewed, or downloaded.” Warshak argues that this definition of electronic storage does not comport with the Ninth Circuit’s decision in Theofel v. Farey-Jones, 359 F.3d 1066, 1071 (9th Cir.2004), which held that “prior access is irrelevant to whether the [emails] at issue were in electronic storage.” Warshak further argues that, because the government failed to mention the Ninth Circuit’s definition, it “usurped the court’s function to determine whether an email ... [is] in ‘electronic storage[.]’ ” Appellant’s Br. at 38. As an initial matter, it is manifest that the decisions of the Ninth Circuit are not binding on courts in this circuit. It therefore cannot be said that the government somehow violated § 2703 by failing to cite an out-of-circuit decision that it thought to be wrongly decided. Incidentally, the government is not alone in thinking that the Ninth Circuit’s definition of electronic storage is incorrect. One commentator has noted that “Theofel is quite implausible and hard to square with the statutory test.” Kerr, A User’s Guide to the Stored Communications Act, 72 Geo. Wash. L.Rev. at 1217; see also United States v. Weaver, 636 F.Supp.2d 769, 773 (C.D.Ill.2009) (“Previously opened emails stored by Microsoft for Hotmail users are not in electronic storage, and the Government can obtain copies of such emails using a trial subpoena.”). Furthermore, it does a disservice to the magistrate judge to suggest that the government usurped the role of the court. The government’s application did include a proposed definition of the term “electronic storage.” That does not mean, however, that the magistrate judge unhesitatingly received that definition, and, as the government notes, the magistrate “presumably [had] the opportunity to consider and review relevant precedent.” Appellee’s Br. at 117. Consequently, we find that, although the government violated the Fourth Amendment, the exclusionary rule does not apply, as the government relied in good faith on § 2703(b) and § 2703(d) to access the contents of Warshak’s emails. B. The Kastigar-Like Hearing 1. Background During the government’s investigation of Berkeley, case agents came into possession of myriad documents that were ostensibly subject to the attorney-client privilege. Many of the documents were obtained during a March 16, 2005 search of Berkeley’s headquarters, in which agents copied the contents of over 90 computers. Other documents were procured earlier through the subpoena and court order issued to NuVox, which granted investigators access to the contents of Warshak’s email accounts. In all, case agents had access to approximately “60,000 email communications from or to attorneys representing Berkeley and Warshak, communications facially and presumptively protected by the attorney-client privilege.” Appellant’s Br. at 41. On July 5, 2007, Warshak filed a “motion to bar the government from using the evidence obtained in violation of the defendants’ attorney-client and work product privileges and to dismiss the indictment since privileged material was used to secure it.” United States v. Warshak, No. 1:06-CR-00111, 2007 WL 3306603, at *1 (S.D.Ohio Nov.5, 2007). In the motion, the defendants requested that the district court hold a hearing “in the framework of Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972), at which the government would bear the burden of establishing that its case was untainted by attorney-client and work product privileged materials.” Warshak, 2007 WL 3306603, at *1. To an extent, the district court granted the motion, setting a “Kastipar-like” hearing with the “narrow purpose of eliciting the sworn testimony of government agents as to their handling of evidence.” Ibid. In ordering the hearing, the district court “found that [the] [defendants had raised enough of a question about the amount of time U.S. Postal Inspector Alejandro Almaguer (‘Almaguer’) possessed privileged data, as well as the government’s methodology in screening data for privileged information, to merit a response.” Ibid. The hearing was held on September 27 and 28, 2007. During the hearing, “the government proffered evidence and the testimony of Almaguer, the [defendants were afforded [an] opportunity to cross-examine Almaguer and examine other agents on direct, and the parties argued their respective positions concerning the propriety of the government action in this case.” Ibid. In addition, the defendants called Peter Horstmann, an expert witness “who used software to analyze the electronic documents the government produced to [the] [defendants.” Ibid. After the hearing, the district court held that the government had satisfied its burden, stating as follows: The [c]ourt’s original concerns that triggered the grant of the “Kastigar-kke” evidentiary hearing were rooted in the amount of time that