Sixth Circuit Hands Down En Banc Decision in Warshak v. United States:
The en banc Sixth Circuit has handed down its decision in Warshak v. United States, the e-mail privacy case I have blogged about. In a majority opinion by Judge Sutton, the court held that the case is not ripe for adjudication; the court therefore vacated the injunction and remanded. Warshak has already been indicted and convicted, the court reasoned, so his e-mail presumably won't be searched again. And even if a search occurs, it's impossible to know what the facts will be when a future search occurs in order to apply the Fourth Amendment to those facts. The case is therefore not ripe for adjudication. Also, there is no hardship to Warshak in not adjudicating the issue now, as he is not currently subject to regulation by the statute and he still has the alternative remedies of a motion to supress and a Bivens action. I think Judge Sutton's analysis is correct, and I'm glad to see the case resolved properly.
Judge Martin, the author of the original panel decision, dissented. His opinion accuses the majority of not caring enough about the Bill of Rights to reach a decision on the merits. The end of Martin's dissent really turns the rhetoric up "to eleven":
Judge Martin, the author of the original panel decision, dissented. His opinion accuses the majority of not caring enough about the Bill of Rights to reach a decision on the merits. The end of Martin's dissent really turns the rhetoric up "to eleven":
While I am saddened, I am not surprised by today’s ruling. It is but another step in the ongoing degradation of civil rights in the courts of this country. The majority makes much of the fact that facial challenges are no way to litigate the constitutional validity of certain laws. Yet our Supreme Court has no problem striking down a handgun ban enacted by a democratically elected city government on a facial basis. See Dist. of Columbia v. Heller, — U.S. —, 2008 WL 2520816 (June 26, 2008). History tells us that it is not the fact that a constitutional right is at issue that portends the outcome of a case, but rather what specific right we are talking about. If it is free speech, freedom of religion, or the right to bear arms, we are quick to strike down laws that curtail those freedoms. But if we are discussing the Fourth Amendment’s right to be free from unreasonable searches and seizures, heaven forbid that we should intrude on the government’s investigatory province and actually require it to abide by the mandates of the Bill of Rights. I can only imagine what our founding fathers would think of this decision. If I were to tell James Otis and John Adams that a citizen’s private correspondence is now potentially subject to ex parte and unannounced searches by the government without a warrant supported by probable cause, what would they say? Probably nothing, they would be left speechless.Judge Sutton's majority opinion offers just the right response:
The dissent’s concern about the “ongoing degradation of civil rights” seems a bit overwrought. The whole point of not deciding the constitutionality of a law in an unripe setting is not to decide it—not to degrade, or for that matter uplift, any constitutional right until we are faced with a concrete, as-applied, challenge to the provision. And if it is true, as the dissent charges, that the majority has a “zeal to uphold the power of the government to intrude into the privacy of citizens”—needless to say, it is not—perhaps we should be commended for restraining ourselves by not making that view the law when we had the chance.Indeed. I would also add that the basic principle that the original Warshak panel was understood to have established — that users generally have a reasonable expectation of privacy in their e-mails — has now been established without apparent controversy by the Ninth Circuit in Quon v. Arch Wireless.
this case by concluding that it is not ripe for adjudication." Do we not want inferior federal courts to take their cues from the Supreme Court?
Maybe the Warren Court. But certainly not the Roberts Court. ;-)
This is the most glaring rhetoric I can see. The fact is that the modern federal government is a total bastardization of the Constitutional intentions for it. Absolute textual fidelity was lost long ago. So, while I agree with the sentiment of the dissent, it seems to be far little far too late.
By the way, Heller did nothing for constitutional fidelity. During the long and drawn-out textual exegesis of the meaning behind the text of the 2nd Am., Scalia, either deftly or irresponsibly, fails to assert an opinion on the whole "shall not be infringed" text. This is simply the legitimization of the unconstitutional, however "reasonable" they may be, governmental restriction on an absolute and inalienable right. Government continues to grow proportionally with the apathy of the body politic. That’s what would have the founding fathers turning in their graves.
Orin, why do you say that Warshak is no longer subject to the regulation? Can the government not use the regulation to continue to investigate him?
By the way, Warshak's motion to suppress was denied based on the good faith exception. I guess his only avenue for relief now is a Bivens action.
The fact that Stevens, Ginsberg, Thomas, Scalia, Kennedy, and Roberts ALL vote to strike down laws passed by Democratically elected bodies is no surprise, but obviously the setting or legal area clearly plays a huge role in how a case will be determined.
In any event, I don't agree that the case is moot, but of course Orin has written extensively on that issue.
Though Orin: What I'd really like to see is some commentary from you on the upcoming Herring decision. I think that's a huge case, and, in my humble view, if the Justices eventually find that the good faith exception to the exclusionary rule applies to mistakes made by other law enforcement, then we're well on our way to seeing the end of the exclusionary rule itself. But that's coming. (Leaving only 1983 actions, which are *obviously* an equal substitute.)
I'm far too ignorant to suggest an elegant legal solution to this situation, but it seems to me unfortunate that Congress' intent to provide substantial limitation on ex parte orders is not being carried out.
In any event, kudos on being cited by the Warshak en banc majority, though I disagree with the outcome. I can't think of anyone else putting out more work of such importance in the computer crime law area.
Even here, where authorized by statue, 2705(a) supposedly sets limits on when the government can forgo notice that are meaningless.
Thanks, I appreciate it.
Oren,
I understand your concern, although I think you need to make some assumptions before you put this in the same category as sneak and peek warrants. In particular, the order here an order to compel served on the ISP: the ISP not only receives notice, but the government never actually enters the ISP. Further, the notice when a warrant is served is notice that the ongoing or completed search is lawful: the homeowner gets to know that the police were there under lawful authority and that their home wasn't ransacked by a burglar. In this case, though, the issue was prior notice to be able to challenge the government's conduct before it occurred, which seems pretty different. Of course it's possible to see this as the virtual analog to a home search, and to argue that the notice in the case of a warrant being served should go to the person who owns the account not the ISP, but I still don't think we're in that doctrinal box at this point.
Moreover, the distinction between free speech, freedom of religion, and the right to bear arms, on the one hand, and the fourth amendment, on the other, is that the former group are (at least on their face) absolute: shall not be infringed, abridged, etc., while the latter bans only unreasonable searches and seizures, not all of them.
What's scary is that the decision was even close.
Warshak isn't actually a criminal defendant in this case: he is a civil plaintiff. Plus, do you actually think there was Article III standing here?
As for standing, I've argued before that people should have standing to assert constitutional claims merely by virtue of being a citizen. People should not be denied constitutional rights merely due to random notions of standing. This is particularly true for the 4th Amendment.... "Sorry, but the police can violate your privacy all they want because you were hanging out at your friend's apartment during the day." I know you'll disagree with me on this, but please don't use the "floodgates of litigation" argument - it's the single most frivilous legal argument in existence, in my oh so humble opinion.
One of these days maybe I'll get around to writing articles on both "citizen standing" (for constitutional claims only) and "ideological estoppel" (another favorite concept of mine).
Standing aside, tt is at least plausible for Warshak to assert that he did not meet the criteria for non-disclosure of the search and that the magistrate committed a factual error. Where is the remedy?
How about under current law?
Oren,
Warshak plainly has standing to sue in a Bivens action for the past access to his e-mail. It's just that his motion for equitable injunctive relief to try to stop future access to e-mail isn't ripe.
Perhaps you ought to read some Chesterton: There exists in such a case a certain institution or law; let us say, for the sake of simplicity, a fence or gate erected across a road. The more modern type of reformer goes gaily up to it and says, “I don’t see the use of this; let us clear it away.” To which the more intelligent type of reformer will do well to answer: “If you don’t see the use of it, I certainly won’t let you clear it away. Go away and think. Then, when you can come back and tell me that you do see the use of it, I may allow you to destroy it.”
This paradox rests on the most elementary common sense. The gate or fence did not grow there. It was not set up by somnambulists who built it in their sleep. It is highly improbable that it was put there by escaped lunatics who were for some reason loose in the street. Some person had some reason for thinking it would be a good thing for somebody. And until we know what the reason was, we really cannot judge whether the reason was reasonable.
My trash bags, left outside my house for pickup, are black (not see-through) and closed. I don't expect people to search through them - that's why I closed them and didn't use see-through bags. Thus the government should have to get a warrant to look through them. Don't tell me I have no reasonable expectation of privacy. Expectations of privacy should be presumed, and the government should have the burden of showing, by clear and convincing evidence, the citizen acted in such a way that unequivocally intended to waive any expectation of privacy (such as having used see-through trash bags).
If I'm counting drug money at my friend's apartment and the cops bust down the closed door and come in without a warrant, don't tell me I have no standing to assert a reasonable expectation of privacy at my friend's apartment. When people are doing something illegal, they will take steps to keep their actions private 99.9% of the time - so it should be practically impossible for the government to ever make a search or seizure without a warrant.
Remember, liberty is directly proportional to the difficulty law enforcement encounters in doing its job. The harder it is for the police to catch criminals, the more liberty we have. I want it to be practically impossible for police to ever catch a criminal. I want practically all criminals to get away with their crimes. I want police to be hampered and obstructed at every turn. I want to know even the worst serial killers, child rapists, and terrorists will remain on the streets even when the police are 100% certain of their identities. I'm not willing to give up one iota of liberty to assist law enforcement in catching bad guys. I'll spare you the Ben Franklin quote about giving up liberty for safety - yet it's more true now than ever before. Liberty is more important to me than having overcrowded prisons.
You shouldn't spare me the quote, because when you type it, you will get the opportunity to re-read it, and realize that you misread it. There is no quote about "giving up liberty for safety." The quote is about giving up essential liberty for temporary safety.
As for your pro-criminal ideas, you might also want to review the Chesterton quote I cited: when you reform things without understanding them, you make a bigger mess. If it's "practically impossible for police to ever catch a criminal," then crime rates will be very very very high. If crime rates are very very very high, then the public will demand very very very extreme measures to combat crime. And you will end up with no fourth amendment at all, rather than the imperfect fourth amendment you believe we have.
There is no possible way to color the government's access to private mail without a warrant as being within the confines of the 4A. The only thing argued here is clever methods (good-faith, standing) to avoid that conclusion.
But they're both issues of "standing" that get in the way of asserting constitutional rights, which I simply disagree with (200 years of caselaw notwithstanding).
For 4th Amendment reasonableness, the question courts should ask is not whether an individual defendant "had a reasonable expectation of privacy" but rather, the court should ask whether the search/seizure in question would have been reasonable to the framers, in light of the abuses of King George. Would Thomas Jefferson approve of the particular search or seizure? Probably not. In that case, either the evidence should be suppressed or the police officer(s) who conducted the illegal search should be sentenced to the same prison term as the defendant (the state can choose either suppression of the evidence or punishment of officer equivalent with that of the defendant who had illegally seized evidence used against him).
Are you sure that Boyd is consistent with the original public meaning of the Fourth Amendment? I hadn't thought it was, so I am very interested in your argument if you choose to make one.
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