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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":
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.
JonC:
What an odd opening line from the dissent: "Apparently taking a page from the Supreme Court, today the majority dismisses
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?
7.11.2008 12:15pm
OrinKerr:
JonC,

Maybe the Warren Court. But certainly not the Roberts Court. ;-)
7.11.2008 12:17pm
Dilan Esper (mail) (www):
By the way, Heller was as applied, not facial. Mr. Heller was denied a gun permit, sued, and got an injunction permitting him to get the permit. Nothing facial about that.
7.11.2008 12:48pm
Layedback (mail):
"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."

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.
7.11.2008 1:04pm
RChris:
Heller was both, the Supreme Court reached out and invalidated not only the section of the law dealing with the permit, but the other sections dealing with restrictions on ammunition, etc.

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.
7.11.2008 1:04pm
MJG:
I don't see anything outrageous or overwrought in the dissent. Disagree, fine, but the basic point about which rights are given more weight from a largely political Supreme Court is undoubtedly correct. (I use the term as Posner uses the term, as based on some set of values the judges bring to bear on the cases, though these values might not always be strictly political in the Democrat/republican sense.)

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.)
7.11.2008 1:34pm
OrinKerr:
MJG writes:
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.
MJG, your concern is a bit overrought. Herring is a very minor case, in my view. More broadly, I have already blogged about Herring at great length here.
7.11.2008 2:28pm
Oren:
Although the statute generally requires the government to give the user prior notice of the disclosure unless it obtains a warrant, it contains an exception, id. § 2703(b)(1)(B), which says the government may delay notice in 90-day increments, id. § 2705(a)(4), if notification would result in “(A) endangering the life or physical safety of an individual; (B) flight from prosecution; (C) destruction of or tampering with evidence; (D) intimidation of potential witnesses; or (E) otherwise seriously jeopardizing an investigation or unduly delaying a trial,” id. § 2705(a)(2);
Perhaps I'm being dense, but it seems like the requirements of 2705(a)(4) cannot be enforced. Supposing, for the sake of argument, that the magistrate grants an ex parte order despite the government not meeting the conditions listed, or so the defendant would like to argue. Suppression is foreclosed by good faith and, by the time the target learns of the searches, the matter is moot. The magistrate's decision to seal is, in effect, unreviewable and the criteria listed in 2705(a)(4) are unenforceable.

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.
7.11.2008 2:33pm
MJG:
I missed the previous post - thanks for the link. I'll post more in the future after I've taken a closer look at your post/the briefs, etc. (Suppose I should just wait until oral argument time in the Fall.)

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.
7.11.2008 2:33pm
Oren:
Addendum, at the heart of my objection in this case, I realize, is a general aversion to 'sneak and peak' warrants. They are not authorized anywhere in statute or FCRP and their constitutionality has never been tested (AFAIK). What's worse, Rule 41 of the FCRP lays out a positive notification requirement on officers serving warrants.

Even here, where authorized by statue, 2705(a) supposedly sets limits on when the government can forgo notice that are meaningless.
7.11.2008 2:43pm
OrinKerr:
MJG,

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.
7.11.2008 3:13pm
Oren:
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.
I don't see failure to give notice as implicating just the right to challenge the order -- notice of a search, even electronically, is (ought) to be a right in and of itself. A target that is searched pursuant to a legal order based on good cause where the only error is one of notice is still materially wronged.
7.11.2008 3:31pm
David M. Nieporent (www):
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.
Is he delusional? What court is "quick" to strike down laws related to the right to bear arms?

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.
7.11.2008 4:50pm
Syd Henderson (mail):
In other news, the 9th Circuit Court of Appeals has ruled that it is unreasonable for a school to strip-search a 13 year old girl for Ibuprofin. Judge Kozinski thought it was a-ok.

What's scary is that the decision was even close.
7.11.2008 5:29pm
BruceM (mail) (www):
It's unfortunate that federal courts, every bit as much as state courts, are loathe to rule in favor of criminal defendants on 4th Amendment issues. "Court Sides With Criminal" headlines are bad enough, and free speech should not even protect such muckraking. However, while I understand how the fear of such headlines affect elected state court judges ("I will be tough on crime - my opponent, the incumbent, sided with the criminals!"), the lifetime protection of Article III doesn't seem to remedy the problem. Two nails in the constitution's coffin for the price of one.
7.11.2008 6:54pm
OrinKerr:
BruceM,

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?
7.11.2008 7:52pm
BruceM (mail) (www):
Orin: I know, I'm just saying as a general principle - you can't compare the willingness of the judiciary to apply or protect the 4th Amendment with other protections offered by the Bill of Rights.

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).
7.11.2008 10:05pm
Oren:
Orin, Warshak might not having standing in the instant case, but was has happened here is that a magistrate is empowered to make unreviewable factual decisions that have a bearing on citizens liberties.

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?
7.11.2008 10:28pm
OrinKerr:
BruceM,

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.
7.12.2008 1:51am
David M. Nieporent (www):
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.
Of course, you've slipped between "constitutional claims" and "constitutional rights" between those two sentences.
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."
That doesn't make any sense. The ruling in that situation is that the police aren't violating your rights in that situation, not that they "can" violate your rights in that situation.

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.
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.
7.12.2008 6:16am
randomclerk:
Would a Bivens action not be barred by Heck v. Humphrey?
7.12.2008 12:09pm
BruceM (mail) (www):
Under current law, no, I'd agree there most likely was not standing in this case.
7.12.2008 4:07pm
Originalism Is Useful (mail):
As an original matter, the dissent is correct.
7.12.2008 6:40pm
BruceM (mail) (www):
David: That's just semantics to justify the violation of one's rights. Citizens should not have to be lucky enough to exist in a judicially-accepted scenario in order to have standing to assert their 4th Amendment rights against a search or seizure by the state. I disagree with Katz v. US (1967) - as long as someone has a subjective expectation of privacy, that's all that should matter - whether a judge who is a former prosecutor and whose spouse is the chief of police deems the subjective expectation of privacy to be "reasonable" should not be relevant to whether or not a search/seizure is reasonable for 4th Amendment purposes.

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.
7.13.2008 2:19am
David M. Nieporent (www):
David: That's just semantics to justify the violation of one's rights. Citizens should not have to be lucky enough to exist in a judicially-accepted scenario in order to have standing to assert their 4th Amendment rights against a search or seizure by the state.
Not at all. The problem is that you're confusing the issue of whether you have 4th amendment rights in a given situation with the issue of standing. When the police search your friend's apartment where you happen to be dropping off some drugs, the ruling isn't that you don't have standing to assert your fourth amendment rights; the ruling is that you don't have fourth amendment rights there.
I disagree with Katz v. US (1967) - as long as someone has a subjective expectation of privacy, that's all that should matter
Well, then, you've misreading the fourth amendment, which only protects against unreasonable searches and seizures, not all searches and seizures. The very use of the modifier "unreasonable" implies that not all searches are. You want to read the word out of the Constitution.

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.
7.13.2008 3:17pm
Oren:
David, it is inconceivable (to me) that a search of private mail would be 'reasonable' without a warrant. Maybe we have different understandings of 'reasonable' but Warshak's emails meet 3/4 of Orin's test in "Four Models . . . "

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.
7.13.2008 7:39pm
BruceM (mail) (www):
David: I should recognize the distinction between "standing" to assert the 4th Amendment and Article III "standing" to assert a case or controversy.

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).
7.13.2008 10:14pm
Joe Bingham (mail):
Chesterton is undercited.
7.14.2008 12:12pm
OrinKerr:
OIU,

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.
7.14.2008 1:50pm
David M. Nieporent (www):
Oren -- I wasn't making any comments about Warshak. Just about Bruce's views generally.
7.14.2008 8:59pm