The Volokh Conspiracy - The Procedural Errors of Warshak v. United States:

In this post on Warshak, I want to address why I think the case was obviously wrongly decided as a procedural matter. The court simply had no business trying to imagine all the ways the statute might be applied and resolving the constitutionality of all of those hypothetical applications. No court has ever done that before, and it's a dramatic break with decades of Fourth Amendment practice that the Supreme Court long ago foreclosed. Not only that, as I have argued in this 2004 law article, it's a reckless practice as a matter of policy: courts simply lack the institutional ability to enact entire surveilance regimes all at once, and any effort to do so is bound to create major headaches (as this one will, for reasons I'll get to in a future post).

  Let's start with some background about how Fourth Amendment law is made. The basic starting point of Fouth Amendment decisionmaking is that it is based on concrete facts: a search or seizure occurs and then its legality is challenged, either pursuant to a civil action or a motion to suppress. The court holds a hearing, figures out exactly what happened, and then applies the Fourth Amendment to the facts as found.

  This does not mean that prospective injunctive relief does not exist in Fourth Amendment law; but it does mean it is rare and its scope is very limited. Courts consider injunctive relief for Fourth Amendment violations when the government has an ongoing program: For example, the police might have enacted a new program putting up a particular kind of road block, or a school might have a policy requiring drug testing of public school students. In these cases, however, the scope of the injunctive relief is always very limited: the court considers whether the recurring known facts as they exist render the government conduct constitutional or unconstitutional. The court's role is limited to giving the existing program the Constitutional thumbs-up or thumbs-down.

  The Warshak court took a radically different approach. According to Judge Martin, courts can rule on facial challenges to statutes that regulate searches and seizures. In this setting, courts have the power to survey all of the possible applications of the statute and determine which ones will be constitutional and which ones won't be; the court can then draft the appropriate injunction to ensure the government oly acts constitutionality in the types of cases potentially covered by the statute. The Court drew this power from two cases: Berger v. New York, 388 U.S. 41 (1967), which considered a facial challenge to a New York wiretapping statute, and Ayotte v. Planned Parenthood, 546 U.S. 320 (2006), the recent abortion case authorizing lower courts to craft injunctive relief for the use of a challenged abortion statute to a set of unconstitutional applications of the statute.

  But this is pretty clearly incorrect. It is true that the Supreme Court did once entertain a facial Fourth Amendment challenge to a statute, in Berger. (There were very unusual circumstances, in case you're interested: Congress was considering the wiretapping legislation ultimately enacted as Title III, and the Justices wanted to and did get their 2 cents in about what it would say. ) However, the Court quickly shut the door on facial Fourth Amendment challeges just a year later in Sibron v. New York, 392 U.S. 40 (1968).

To read the rest of this post, click here.

To return to the truncated post, click here.

Sibron was a companion case to Terry v. Ohio, and it applied the Terry framework to two stops and frisks in New York state. Unlike the Ohio stops and frisks in Terry, however, the stops and frisks in Sibron were made pursuant to the terms of New York's stop and frisk statute, Section 180-a. Section 180-a authorized the police to "stop" individuals, "demand" explanations from them and "search" them for "dangerous weapons" if "reasonable suspicion" existed. The lawyers on both side of Sibron read Berger, saw that the Court approached the New York wiretapping statute as a facial challenge, and wrote their briefs on the assumption that New York's stop and frisk statute would be evaluated facially as well.

In an opinion by Chief Justice Warren, the Court concluded that it was improper to subject a statute to facial Fourth Amendment challenge outside the fairly specific context of a statute authorizing the issuance of search warrants. Here's the Court's anaylysis:

The parties on both sides of these two cases have urged that the principal issue before us is the constitutionality of 180-a "on its face." We decline, however, to be drawn into what we view as the abstract and unproductive exercise of laying the extraordinarily elastic categories of 180-a next to the categories of the Fourth Amendment in an effort to determine whether the two are in some sense compatible. The constitutional validity of a warrantless search is pre-eminently the sort of question which can only be decided in the concrete factual context of the individual case. In this respect it is quite different from the question of the adequacy of the procedural safeguards written into a statute which purports to authorize the issuance of search warrants in certain circumstances. See Berger v. New York, 388 U.S. 41 (1967). No search required to be made under a warrant is valid if the procedure for the issuance of the warrant is inadequate to ensure the sort of neutral contemplation by a magistrate of the grounds for the search and its proposed scope, which lies at the heart of the Fourth Amendment. E. g., Aguilar v. Texas, 378 U.S. 108 (1964); Giordenello v. United States, 357 U.S. 480 (1958). This Court held last Term in Berger v. New York, supra, that N. Y. Code Crim Proc. 813-a, which established a procedure for the issuance of search warrants to permit electronic eavesdropping, failed to embody the safeguards demanded by the Fourth and Fourteenth Amendments.

Section 180-a, unlike 813-a, deals with the substantive validity of certain types of seizures and searches without warrants. It purports to authorize police officers to "stop" people, "demand" explanations of them and "search [them] for dangerous weapon[s]" in certain circumstances upon "reasonable suspicion" that they are engaged in criminal activity and that they represent a danger to the policeman. The operative categories of 180-a are not the categories of the Fourth Amendment, and they are susceptible of a wide variety of interpretations. New York is, of course, free to develop its own law of search and seizure to meet the needs of local law enforcement, see Ker v. California, 374 U.S. 23, 34 (1963), and in the process it may call the standards it employs by any names it may choose. It may not, however, authorize police conduct which trenches upon Fourth Amendment rights, regardless of the labels which it attaches to such conduct. The question in this Court upon review of a state-approved search or seizure "is not whether the search [or seizure] was authorized by state law. The question is rather whether the search was reasonable under the Fourth Amendment. Just as a search authorized by state law may be an unreasonable one under that amendment, so may a search not expressly authorized by state law be justified as a constitutionally reasonable one." Cooper v. California, 386 U.S. 58, 61 (1967).

Accordingly, we make no pronouncement on the facial constitutionality of 180-a. The constitutional point with respect to a statute of this peculiar sort, as the Court of Appeals of New York recognized, is "not so much . . . the language employed as . . . the conduct it authorizes." People v. Peters, 18 N. Y. 2d 238, 245, 219 N. E. 2d 595, 599, 273 N. Y. S. 2d 217, 222 (1966). We have held today in Terry v. Ohio, ante, p. 1, that police conduct of the sort with which 180-a deals must be judged under the Reasonable Search and Seizure Clause of the Fourth Amendment. The inquiry under that clause may differ sharply from the inquiry set up by the categories of 180-a. Our constitutional inquiry would not be furthered here by an attempt to pronounce judgment on the words of the statute. We must confine our review instead to the reasonableness of the searches and seizures which underlie these two convictions.

Sibron, 392 U.S. at 59-62.

  So how does Judge Martin deal with Sibron, which seems to limit Berger-like facial challenges to testing "the procedure for the issuance of the warrant . . . to ensure the sort of neutral contemplation by a magistrate of the grounds for the search and its proposed scope" — obviously not something implicated by this case?

  Well, he doesn't. Judge Martin doesn't discuss Sibron. The case is not even cited. Instead, Judge Martin sees Berger as standing for the broad proposition that facial challenges are permitted "where the statute, on its face, endorses procedures to authorize a search that clearly do not comport with the Fourth Amendment." But isn't that broad reading pretty clearly foreclosed by Sibron?

  Judge Martin's opinion also ignores the Supreme Court's recent statements discouraging and narrowing the availability of facial challenges in Sabri v. United States, 541 U.S. 600 (2004). In Sabri, a criminal defendant brought a facial challenge to a bribery statute alleging that the statute lacked the needed connection to interstate commerce. The opinion of the Court included a discussion of when facial challenges are permitted; although the reasoning is general, I think it is nonetheless instructive

We add an afterword on Sabri’s technique for challenging his indictment by facial attack on the underlying statute, and begin by recalling that facial challenges are best when infrequent. See, e.g., United States v. Raines, 362 U.S. 17, 22 (1960) (laws should not be invalidated by “reference to hypothetical cases”); Yazoo & Mississippi Valley R. Co. v. Jackson Vinegar Co., 226 U.S. 217, 219—220 (1912) (same). Although passing on the validity of a law wholesale may be efficient in the abstract, any gain is often offset by losing the lessons taught by the particular, to which common law method normally looks. Facial adjudication carries too much promise of “premature interpretatio[n] of statutes” on the basis of factually bare-bones records. Raines, supra, at 22. . . .

Facial challenges of this sort are especially to be discouraged. Not only do they invite judgments on fact-poor records, but they entail a further departure from the norms of adjudication in federal courts: overbreadth challenges call for relaxing familiar requirements of standing, to allow a determination that the law would be unconstitutionally applied to different parties and different circumstances from those at hand. See, e.g., Chicago v. Morales, 527 U.S. 41, 55—56, n. 22 (1999) (plurality opinion). Accordingly, we have recognized the validity of facial attacks alleging overbreadth (though not necessarily using that term) in relatively few settings, and, generally, on the strength of specific reasons weighty enough to overcome our well-founded reticence. See, e.g., Broadrick v. Oklahoma, 413 U.S. 601 (1973) (free speech); Aptheker v. Secretary of State, 378 U.S. 500 (1964) (right to travel); Stenberg v. Carhart, 530 U.S. 914, 938—946 (2000) (abortion); City of Boerne v. Flores, 521 U.S. 507, 532—535 (1997) (legislation under §5 of the Fourteenth Amendment). See generally Fallon, As-Applied and Facial Challenges and Third-Party Standing, 113 Harv. L. Rev. 1321, 1351 (2000) (emphasizing role of various doctrinal tests in determining viability of facial attack); Monaghan, Overbreadth, 1981 S. Ct. Rev. 1, 24 (observing that overbreadth is a function of substantive First Amendment law). Outside these limited settings, and absent a good reason, we do not extend an invitation to bring overbreadth claims.

Like Sibron, Sabri is not mentioned in the Warshak opinion.

After determining that Berger permits a facial challenge to a statute on Fourth Amendment grounds, Judge Martin next invokes Ayotte v. Planned Parenthood for the view that a court can craft a narrow injunctive remedy focused on unconstitutional applications of the challenged statute. Ayotte involved abortion, one of the few areas in which facial challenges are common. But if you read Ayotte, it expressly counsels against doing what the panel did in Warshak: the Court warns that courts could not "rewrite" statutes to "salvage" them. According to Ayotte, partial invalidation of statutes should be limited to reinforcing clear and established constitutional lines in ways so as to reconstruct legislative intent with the unconstitutional applications removed. Justice O'Connor explains:

[M]indful that our constitutional mandate and institutional competence are limited, we restrain ourselves from “rewrit[ing] state law to conform it to constitutional requirements” even as we strive to salvage it. Virginia v. American Booksellers Assn., Inc., 484 U.S. 383, 397 (1988). Our ability to devise a judicial remedy that does not entail quintessentially legislative work often depends on how clearly we have already articulated the background constitutional rules at issue and how easily we can articulate the remedy. In United States v. Grace, supra, at 180—183, for example, we crafted a narrow remedy much like the one we contemplate today, striking down a statute banning expressive displays only as it applied to public sidewalks near the Supreme Court but not as it applied to the Supreme Court Building itself.

We later explained that the remedy in Grace was a “relatively simple matter” because we had previously distinguished between sidewalks and buildings in our First Amendment jurisprudence. United States v. Treasury Employees, 513 U.S. 454, 479, n. 26 (1995). But making distinctions in a murky constitutional context, or where line-drawing is inherently complex, may call for a “far more serious invasion of the legislative domain” than we ought to undertake. Ibid.

This is of course exactly the case of e-mail privacy. I spend a full 50 pages in my 2006 Computer Crime Law casebook pondering the many possible arguments for different ways the Fourth Amendment might apply to e-mail (from pages 394-445). My ultimate conclusion is that the law is completely unknown and that a remarkable range of outcomes are possible based on existing authorities. This drives students nuts; as you might imagine, they want some answers. But I can't give them certainty that doesn't exist.

What does Judge Martin make of the passage in Ayotte warning judges away from offering comprehensive rules when the law is murky or inherently complex? We don't know; he does not mention it. Judge Martin interprets Ayotte as bestowing upon him broad remedial powers, but he does not address the limitations on those powers found in the opinion itself.

In sum, the Warshak court gave itself powers that Supreme Court precedent clearly forecloses. Courts simply lack the power to decide entire fields of Fourth Amendment law based on imagined facts, and the Warshak court lacked the power to do so here. Warshak has already brought a civil suit challenging the two accesses of his e-mail accounts that occurred in 2005, and any judicial pronouncement of how the Fourth Amendment applies to compelling e-mail should be limited to the facts of the searches that occurred. )

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

	[Orin Kerr, June 21, 2007 at 3:04pm] Trackbacks The Procedural Errors of Warshak v. United States: In this post on Warshak, I want to address why I think the case was obviously wrongly decided as a procedural matter. The court simply had no business trying to imagine all the ways the statute might be applied and resolving the constitutionality of all of those hypothetical applications. No court has ever done that before, and it's a dramatic break with decades of Fourth Amendment practice that the Supreme Court long ago foreclosed. Not only that, as I have argued in this 2004 law article, it's a reckless practice as a matter of policy: courts simply lack the institutional ability to enact entire surveilance regimes all at once, and any effort to do so is bound to create major headaches (as this one will, for reasons I'll get to in a future post). Let's start with some background about how Fourth Amendment law is made. The basic starting point of Fouth Amendment decisionmaking is that it is based on concrete facts: a search or seizure occurs and then its legality is challenged, either pursuant to a civil action or a motion to suppress. The court holds a hearing, figures out exactly what happened, and then applies the Fourth Amendment to the facts as found. This does not mean that prospective injunctive relief does not exist in Fourth Amendment law; but it does mean it is rare and its scope is very limited. Courts consider injunctive relief for Fourth Amendment violations when the government has an ongoing program: For example, the police might have enacted a new program putting up a particular kind of road block, or a school might have a policy requiring drug testing of public school students. In these cases, however, the scope of the injunctive relief is always very limited: the court considers whether the recurring known facts as they exist render the government conduct constitutional or unconstitutional. The court's role is limited to giving the existing program the Constitutional thumbs-up or thumbs-down. The Warshak court took a radically different approach. According to Judge Martin, courts can rule on facial challenges to statutes that regulate searches and seizures. In this setting, courts have the power to survey all of the possible applications of the statute and determine which ones will be constitutional and which ones won't be; the court can then draft the appropriate injunction to ensure the government oly acts constitutionality in the types of cases potentially covered by the statute. The Court drew this power from two cases: Berger v. New York, 388 U.S. 41 (1967), which considered a facial challenge to a New York wiretapping statute, and Ayotte v. Planned Parenthood, 546 U.S. 320 (2006), the recent abortion case authorizing lower courts to craft injunctive relief for the use of a challenged abortion statute to a set of unconstitutional applications of the statute. But this is pretty clearly incorrect. It is true that the Supreme Court did once entertain a facial Fourth Amendment challenge to a statute, in Berger. (There were very unusual circumstances, in case you're interested: Congress was considering the wiretapping legislation ultimately enacted as Title III, and the Justices wanted to and did get their 2 cents in about what it would say. ) However, the Court quickly shut the door on facial Fourth Amendment challeges just a year later in Sibron v. New York, 392 U.S. 40 (1968). To read the rest of this post, click here. To return to the truncated post, click here. Sibron was a companion case to Terry v. Ohio, and it applied the Terry framework to two stops and frisks in New York state. Unlike the Ohio stops and frisks in Terry, however, the stops and frisks in Sibron were made pursuant to the terms of New York's stop and frisk statute, Section 180-a. Section 180-a authorized the police to "stop" individuals, "demand" explanations from them and "search" them for "dangerous weapons" if "reasonable suspicion" existed. The lawyers on both side of Sibron read Berger, saw that the Court approached the New York wiretapping statute as a facial challenge, and wrote their briefs on the assumption that New York's stop and frisk statute would be evaluated facially as well. In an opinion by Chief Justice Warren, the Court concluded that it was improper to subject a statute to facial Fourth Amendment challenge outside the fairly specific context of a statute authorizing the issuance of search warrants. Here's the Court's anaylysis: The parties on both sides of these two cases have urged that the principal issue before us is the constitutionality of 180-a "on its face." We decline, however, to be drawn into what we view as the abstract and unproductive exercise of laying the extraordinarily elastic categories of 180-a next to the categories of the Fourth Amendment in an effort to determine whether the two are in some sense compatible. The constitutional validity of a warrantless search is pre-eminently the sort of question which can only be decided in the concrete factual context of the individual case. In this respect it is quite different from the question of the adequacy of the procedural safeguards written into a statute which purports to authorize the issuance of search warrants in certain circumstances. See Berger v. New York, 388 U.S. 41 (1967). No search required to be made under a warrant is valid if the procedure for the issuance of the warrant is inadequate to ensure the sort of neutral contemplation by a magistrate of the grounds for the search and its proposed scope, which lies at the heart of the Fourth Amendment. E. g., Aguilar v. Texas, 378 U.S. 108 (1964); Giordenello v. United States, 357 U.S. 480 (1958). This Court held last Term in Berger v. New York, supra, that N. Y. Code Crim Proc. 813-a, which established a procedure for the issuance of search warrants to permit electronic eavesdropping, failed to embody the safeguards demanded by the Fourth and Fourteenth Amendments. Section 180-a, unlike 813-a, deals with the substantive validity of certain types of seizures and searches without warrants. It purports to authorize police officers to "stop" people, "demand" explanations of them and "search [them] for dangerous weapon[s]" in certain circumstances upon "reasonable suspicion" that they are engaged in criminal activity and that they represent a danger to the policeman. The operative categories of 180-a are not the categories of the Fourth Amendment, and they are susceptible of a wide variety of interpretations. New York is, of course, free to develop its own law of search and seizure to meet the needs of local law enforcement, see Ker v. California, 374 U.S. 23, 34 (1963), and in the process it may call the standards it employs by any names it may choose. It may not, however, authorize police conduct which trenches upon Fourth Amendment rights, regardless of the labels which it attaches to such conduct. The question in this Court upon review of a state-approved search or seizure "is not whether the search [or seizure] was authorized by state law. The question is rather whether the search was reasonable under the Fourth Amendment. Just as a search authorized by state law may be an unreasonable one under that amendment, so may a search not expressly authorized by state law be justified as a constitutionally reasonable one." Cooper v. California, 386 U.S. 58, 61 (1967). Accordingly, we make no pronouncement on the facial constitutionality of 180-a. The constitutional point with respect to a statute of this peculiar sort, as the Court of Appeals of New York recognized, is "not so much . . . the language employed as . . . the conduct it authorizes." People v. Peters, 18 N. Y. 2d 238, 245, 219 N. E. 2d 595, 599, 273 N. Y. S. 2d 217, 222 (1966). We have held today in Terry v. Ohio, ante, p. 1, that police conduct of the sort with which 180-a deals must be judged under the Reasonable Search and Seizure Clause of the Fourth Amendment. The inquiry under that clause may differ sharply from the inquiry set up by the categories of 180-a. Our constitutional inquiry would not be furthered here by an attempt to pronounce judgment on the words of the statute. We must confine our review instead to the reasonableness of the searches and seizures which underlie these two convictions. Sibron, 392 U.S. at 59-62. So how does Judge Martin deal with Sibron, which seems to limit Berger-like facial challenges to testing "the procedure for the issuance of the warrant . . . to ensure the sort of neutral contemplation by a magistrate of the grounds for the search and its proposed scope" — obviously not something implicated by this case? Well, he doesn't. Judge Martin doesn't discuss Sibron. The case is not even cited. Instead, Judge Martin sees Berger as standing for the broad proposition that facial challenges are permitted "where the statute, on its face, endorses procedures to authorize a search that clearly do not comport with the Fourth Amendment." But isn't that broad reading pretty clearly foreclosed by Sibron? Judge Martin's opinion also ignores the Supreme Court's recent statements discouraging and narrowing the availability of facial challenges in Sabri v. United States, 541 U.S. 600 (2004). In Sabri, a criminal defendant brought a facial challenge to a bribery statute alleging that the statute lacked the needed connection to interstate commerce. The opinion of the Court included a discussion of when facial challenges are permitted; although the reasoning is general, I think it is nonetheless instructive We add an afterword on Sabri’s technique for challenging his indictment by facial attack on the underlying statute, and begin by recalling that facial challenges are best when infrequent. See, e.g., United States v. Raines, 362 U.S. 17, 22 (1960) (laws should not be invalidated by “reference to hypothetical cases”); Yazoo & Mississippi Valley R. Co. v. Jackson Vinegar Co., 226 U.S. 217, 219—220 (1912) (same). Although passing on the validity of a law wholesale may be efficient in the abstract, any gain is often offset by losing the lessons taught by the particular, to which common law method normally looks. Facial adjudication carries too much promise of “premature interpretatio[n] of statutes” on the basis of factually bare-bones records. Raines, supra, at 22. . . . Facial challenges of this sort are especially to be discouraged. Not only do they invite judgments on fact-poor records, but they entail a further departure from the norms of adjudication in federal courts: overbreadth challenges call for relaxing familiar requirements of standing, to allow a determination that the law would be unconstitutionally applied to different parties and different circumstances from those at hand. See, e.g., Chicago v. Morales, 527 U.S. 41, 55—56, n. 22 (1999) (plurality opinion). Accordingly, we have recognized the validity of facial attacks alleging overbreadth (though not necessarily using that term) in relatively few settings, and, generally, on the strength of specific reasons weighty enough to overcome our well-founded reticence. See, e.g., Broadrick v. Oklahoma, 413 U.S. 601 (1973) (free speech); Aptheker v. Secretary of State, 378 U.S. 500 (1964) (right to travel); Stenberg v. Carhart, 530 U.S. 914, 938—946 (2000) (abortion); City of Boerne v. Flores, 521 U.S. 507, 532—535 (1997) (legislation under §5 of the Fourteenth Amendment). See generally Fallon, As-Applied and Facial Challenges and Third-Party Standing, 113 Harv. L. Rev. 1321, 1351 (2000) (emphasizing role of various doctrinal tests in determining viability of facial attack); Monaghan, Overbreadth, 1981 S. Ct. Rev. 1, 24 (observing that overbreadth is a function of substantive First Amendment law). Outside these limited settings, and absent a good reason, we do not extend an invitation to bring overbreadth claims. Like Sibron, Sabri is not mentioned in the Warshak opinion. After determining that Berger permits a facial challenge to a statute on Fourth Amendment grounds, Judge Martin next invokes Ayotte v. Planned Parenthood for the view that a court can craft a narrow injunctive remedy focused on unconstitutional applications of the challenged statute. Ayotte involved abortion, one of the few areas in which facial challenges are common. But if you read Ayotte, it expressly counsels against doing what the panel did in Warshak: the Court warns that courts could not "rewrite" statutes to "salvage" them. According to Ayotte, partial invalidation of statutes should be limited to reinforcing clear and established constitutional lines in ways so as to reconstruct legislative intent with the unconstitutional applications removed. Justice O'Connor explains: [M]indful that our constitutional mandate and institutional competence are limited, we restrain ourselves from “rewrit[ing] state law to conform it to constitutional requirements” even as we strive to salvage it. Virginia v. American Booksellers Assn., Inc., 484 U.S. 383, 397 (1988). Our ability to devise a judicial remedy that does not entail quintessentially legislative work often depends on how clearly we have already articulated the background constitutional rules at issue and how easily we can articulate the remedy. In United States v. Grace, supra, at 180—183, for example, we crafted a narrow remedy much like the one we contemplate today, striking down a statute banning expressive displays only as it applied to public sidewalks near the Supreme Court but not as it applied to the Supreme Court Building itself. We later explained that the remedy in Grace was a “relatively simple matter” because we had previously distinguished between sidewalks and buildings in our First Amendment jurisprudence. United States v. Treasury Employees, 513 U.S. 454, 479, n. 26 (1995). But making distinctions in a murky constitutional context, or where line-drawing is inherently complex, may call for a “far more serious invasion of the legislative domain” than we ought to undertake. Ibid. This is of course exactly the case of e-mail privacy. I spend a full 50 pages in my 2006 Computer Crime Law casebook pondering the many possible arguments for different ways the Fourth Amendment might apply to e-mail (from pages 394-445). My ultimate conclusion is that the law is completely unknown and that a remarkable range of outcomes are possible based on existing authorities. This drives students nuts; as you might imagine, they want some answers. But I can't give them certainty that doesn't exist. What does Judge Martin make of the passage in Ayotte warning judges away from offering comprehensive rules when the law is murky or inherently complex? We don't know; he does not mention it. Judge Martin interprets Ayotte as bestowing upon him broad remedial powers, but he does not address the limitations on those powers found in the opinion itself. In sum, the Warshak court gave itself powers that Supreme Court precedent clearly forecloses. Courts simply lack the power to decide entire fields of Fourth Amendment law based on imagined facts, and the Warshak court lacked the power to do so here. Warshak has already brought a civil suit challenging the two accesses of his e-mail accounts that occurred in 2005, and any judicial pronouncement of how the Fourth Amendment applies to compelling e-mail should be limited to the facts of the searches that occurred. ) All Related Posts (on one page) \| Some Related Posts: Sixth Circuit Grants Petition for Rehearing En Banc in Warshak v. United States: Warshak Files Reponse; Sixth Circuit Rejects All Amicus Submissions: My Amicus Brief in Warshak v. United States:... Warshak and Fourth Amendment Standards for Orders to Compel: The Procedural Errors of Warshak v. United States: The Legal Rulings in Warshak v. United States:... A Series of Posts on Warshak v. United States, the E-Mail Privacy Case: Sixth Circuit Blockbuster on E-Mail Privacy: Warshak v. United States: