Tomorrow the Sixth Circuit will be holding argument in Warshak v. United States, a rather odd case involving e-mail privacy. I'm pretty sure the court won't get to the merits, but it's a notable case nonetheless.

  Warshak, a suspect in a massive fraud case, sought an injunction against the government obtaining his e-mail from his ISP pursuant to the Stored Communications Act. Warshal reasoned that the Stored Communications Act lets the government obtain e-mail in some cases with less process than a full search warrant, and that if the government were to obtain his e-mail in that way that it would end up violating his Fourth Amendment rights. The district court judge in the case ended up crafting a rather strange injunction to address possible Fourth Amendment shortcomings in the statute: the judge ruled that the United States could not obtain e-mail with less process than a warrant in any case anywhere in the Southern District of Ohio unless it gave that person prior notice and an opportunity to be heard.

    The government's brief on appeal before the Sixth Circuit is here; Warshak's brief is here.

  I ended up deciding not to file an amicus brief in the case because it seems very unlikely that the court will reach the merits. I don't think I have ever come across a preliminary injunction of a statute on Fourth Amendment grounds, and I imagine the court will reverse on procedural grounds without getting into the merits. That's the right call, in my view: With one quirky historical exception, review of Fourth Amendment challenges has always been as-applied, not facial. Courts ask whether the government's conduct was an unreasonable search or seizure, not whether following the statute will in some cases or all cases violate the Fourth Amendment. (For the classic discussion of the dangers of facial review of statutes under the Fourth Amendment, see Chief Justice Warren's opinion in Sibron v. New York.)

  A facial review in this particular case would be particularly problematic. There are no facts yet, and the Fourth Amendment is intensely fact-specific. Further, we don't even know if the government's reading of the statute is correct; there's a split in the courts as to what the relevant government authorities actually are (as explained here). Finally, the Fourth Amendment issues in the case are both incredibly important and tremendously complex; they would require a court to wade through the reasonable expectation of privacy test in remotely stored files, the standard of reasonableness for orders to compel third party data, and third-party consent rights for system administrators — and all without any facts and no clear sense of the relevant statutory law.

  I'm pretty sure the Sixth Circuit won't want to jump into all of these questions in such an odd procedural posture. It seems pretty clearly unwise to try. It makes much more sense for the court to let the case develop in the usual course: Warshak has already been indicted, and if e-mail evidence is used against him he can file a motion to suppress (and/or bring a civil claim under Bivens).

  If you're interested in more on the substantive legal issues here, I go into depth on a number of these issues in my casebook; I also have an extended discussion of the role of the courts in applying the Fourth Amendment to new technologies in this article.

  UPDATE: There were also two amicus briefs filed on the merits of the case, just in case the panel delves into the Fourth Amendment issues. A group of privacy law and Internet law professors led by Susan Freiwald and Patricia Bellia filed one brief; the Electronic Frontier Foundation filed another. I think both briefs raise interesting arguments, although the issues are much more complicated than either suggests. In any event, I think the procedural posture of the case means that the Fourth Amendment issues are best left for another day.

  ANOTHER UPDATE: To get an idea of how difficult some of the Fourth Amendment issues are, check out the amicus brief I wrote in 2002 in a somewhat similar Eighth Circuit case, United States v. Bach. I wrote that amicus brief because I wanted to make sure the panel recognized the very difficult issues it was potentially facing. I thought about updating my Bach amicus brief and submitting it in the Warshak case, but I ended up being short on time (and I figured the procedural problems made it unlikely the court would get to the substance). Note also that the facts of the Bach case did not implicate the third-party consent issues raised in Warshak.