I have just heard that the Sixth Circuit has granted the United States’ petition for rehearing en banc in Warshak v. United States, the important e-mail privacy case that I have blogged about extensively over the last few months. The docket entry states that “The previous decision and judgment of this court is vacated, [and] the mandate is stayed.” The parties’ supplemental briefs are due November 8.
This is a promising development for the law, I think, for the reasons I explained in my attempted amicus brief. On the downside, now I have to call up West and do some quick surgery on the materials covering e-mail privacy that I had written for the forthcoming new Third Edition of the LaFave/Israel/King Criminal Procedure treatise. (More work, always more work.)
I’ll probably have some more on the general question of what the Sixth Circuit might do in the case, as well as the foundational question of how the Fourth Amendment*should* apply to e-mail, in the next few weeks; I’ve been fiddling with a law review article on the latter, and now that the issue has a bit more breathing space I’ll probably blog some of my tentative thoughts on the issue to test the waters. In the meantime I just wanted to flag the Court’s decision to rehear the case en banc.