Not surprisingly, therefore, firewalls and taint teams were developed in the context of the Fifth Amendment, not the Fourth or Sixth Amendments. Remember who comprises the firewall and taint teams: other FBI agents, prosecutors and government officials, who have no right under the Fourth and Sixth Amendments even to see private or confidential materials, regardless of whether it is ever used against a defendant.

The very fact that this material is seen or read by a government official constitutes a core violation. It would be the same if the government surreptitiously recorded a confession of a penitent to a priest, or a description of symptoms by a patient to a doctor, or a discussion between a husband and wife of their sex life.

The government simply has no right to this material, whether it ever uses it against the penitent, the patient, or the spouse in a criminal case.