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.