The Volokh Conspiracy
[Orin Kerr, June 18, 2007 at 7:09pm] Trackbacks
A Series of Posts on Warshak v. United States, the E-Mail Privacy Case:
Today's Fourth Amendment decision in Warshak v. United States is astonishing on a number of fronts. If it stands on the books, it will revolutionize the way that Fourth Amendment challenges are brought; it will constitutionalize an area of law long thought to be statutory, invalidating some statutes along the way; and it will create the rather surprising result that Fourth Amendment protections are actually significantly stronger online than in the physical world.

  With that said, the caveat "if it remains on the books" is very important here. Whether the panel's view of the Fourth Amendment is right or wrong, Judge Martin had to reach out to decide as much as he did. In so doing, he had to make some procedural moves that strike me as pretty obviously wrong. If the Sixth Circuit en banc corrects the procedural errors, all of the panel's substantive Fourth Amendment holdings will go away.

  I think Warshak will be a very good case for en banc review. Indeed, assuming the government petitions for rehearing, I would plan to write a brief urging the en banc court to grant the petition. In the next few posts I want to explain why I think the case is so remarkable, and also very troubling. My plan is to start with the procedural problems, then post on the panel's Fourth Amendment holdings, and then post on the difficulties with the panel's Fourth Amendment holdings.

All Related Posts (on one page) | Some Related Posts:

  1. Sixth Circuit Grants Petition for Rehearing En Banc in Warshak v. United States:
  2. Warshak Files Reponse; Sixth Circuit Rejects All Amicus Submissions:
  3. My Amicus Brief in Warshak v. United States:...
  4. The Facts and Injunction in Warshak v. United States:
  5. A Series of Posts on Warshak v. United States, the E-Mail Privacy Case:
  6. Sixth Circuit Blockbuster on E-Mail Privacy:
  7. Warshak v. United States:
percuriam:
Orin, I agree the panel's decision is very troubling. I have obtained numerous 2703 orders to get the contents order than 180s days without ever thinking about the 4th amendment problems. I just assumed that since the ISP has the right to look into your emails, that fact alone would defeat the reasonable expectation of privacy in the objective sense.
6.18.2007 10:22pm
Kati B. (mail):
Wow. First, it certainly looks like the court sidestepped some serious procedural issues in order to reach its Fourth Amendment holdings. Second, the court’s Fourth Amendment analysis seems heavily premised on analogizing e-mails to telephone calls. However, I’m not sure the analogy is appropriate in the context of § 2703, because while most monitoring of telephone conversations is prospective, prospective monitoring of e-mail (which is not governed by the SCA) is not at issue here. Instead, the SCA covers retrospective surveillance, and here the court is particularly interested in the lower standard for obtaining e-mail that has been in storage by a third party for over 180 days. The two types of surveillance are different enough that the analogy doesn't seem very useful.

Mainly, I want the Sixth Circuit en banc to correct this because I made a really nifty SCA flowchart for Prof. Kerr’s Computer Crime exam last month, and I’d hate to see it become outdated so quickly.
6.19.2007 1:30am
JEM:
The court's ruling is in most respects what common sense would dictate that the law should be, should commercial ISPs be held to the same standards as private telcos and the quasi-governmental USPS, but that's not necessarily what it is.
6.19.2007 1:32am
OrinKerr:
Kati B writes:
Mainly, I want the Sixth Circuit en banc to correct this because I made a really nifty SCA flowchart for Prof. Kerr’s Computer Crime exam last month, and I’d hate to see it become outdated so quickly.
Talk about substantial harm to the public!
6.19.2007 1:40am

PicoSearch
Help