What Ever Happened to Rehberg v. Paulk?

I’ve had a few posts recently on new Fourth Amendment decisions that I think are wrongly decided, and I wanted to flag an update on one case that I blogged about back in March: Rehberg v. Paulk, the case holding that there is no Fourth Amendment protection in the contents of e-mails. I wrote a long post on why I thought the decision was wrong, and I ended the post with this note:

Finally, my argument does not mean that Rehberg should have necessarily prevailed on his Fourth Amendment claim. The Stored Communications Act expressly allows some contents of communications to be compelled with a subpoena. See 18 U.S.C. 2703(b). Although I think that provision is generally unconstitutional, for reasons cited above, whether that is “clearly established” is of course another matter. Given that the officers have a qualified immunity defense, the officers may be entitled to qualified immunity even if using a subpoena to compel the contents of e-mail violated the Fourth Amendment.

I also noted here that EFF had helped file a petition for rehearing back in April.

While I was off-blog at the Senate this summer, the Eleventh Circuit announced some good news. Last month, the original panel granted panel rehearing, and in its new decision it declined to reach whether the Fourth Amendment protects e-mail and instead just rested on the qualified immunity issue:

Given the lack of precedent, we now question whether it would be prudent in this case and on this limited factual record to establish broad precedent as to the reasonable privacy expectation in email content. Moreover, because this is a qualified immunity case, we need not reach the underlying constitutional issue. Instead, we can resolve this case narrowly, because at a minimum Rehberg has not shown his alleged constitutional right was clearly established.

The court thus ruled that any violation wasn’t clearly established, triggering qualified immunity, without getting to the underlying question of whether a right was violated in the first place.

This isn’t news to the folks that follow this area of law really closely — the Eleventh Circuit’s new decision was handed down July 16th — but I wanted to flag the (good) news for folks who may not have known of it.