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":

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.