Warshak: 6th Circuit Blinks

As I explained in an earlier post, last year a decision issued by three of the judges on the Sixth Circuit Court of Appeals held, in effect, that we have a 4th Amendment expectation of privacy in our emails, even when the emails are stored on the servers of our Internet Service Provider.

As I also noted, the government was appealing the ruling to the full Sixth Circuit. In the federal courts of appeals, most appeals are heard and decided by a sub-set of the full court consisting of three judges. When someone is not happy with a ruling, they can try to get the entire court to rehear the matter, which the government succeeded in doing in this case.

As I explained earlier, a federal district judge in Cincinnati had held that the statute the government uses to gain access to stored emails without getting a search warrant violated the 4th Amendment and issued an injunction barring its enforcement. (The statute is based on the premise that, as I noted earlier, we do not have an expectation of privacy in email because it can be read by employees of our Internet Service Provider.) The three judge panel that heard the initial appeal last year agreed with her and held the statute unconstitution.

I talked to a Department of Justice lawyer earlier this year. He said that the position the DOJ was taking in this appeal to the entire court was to raise two procedural issues in hopes of getting the case kicked out without the court’s addressing the substantive issue, i.e., whether the 4th Amendment encompasses email. He said the government was doing that because, frankly, their case was weak; it was weak, according to this attorney, because the government hadn’t developed a complete record, which meant they didn’t have the facts they needed to make strong arguments. And I suspect the government was more than a little freaked by the fact that a federal district court judge and three court of appeals judges found that the 4th Amendment does encompass email. They know they’ll have to deal with that issue at some point, but they want to pick a case that puts them in the best tactical advantage when they finally do so.

The entire court – 14 federal appellate judges – threw the case out because they found it wasn’t “ripe.” “A claim is not `amenable to . . . the judicial process . . . when it is filed too early (making it unripe).’) Warshak v. U.S. 2008 WL 2698177 (6th Cir. 2008). Here is why the court found that Warshak’s claim was not ripe for judicial decision:

To start, we have no idea whether the government will conduct an ex parte search of Warshak's e-mail account in the future and plenty of reason to doubt that it will, making this a claim that depends on `contingent future events that may not occur as anticipated, or indeed may not occur at all.’ . . . Answering difficult legal questions before they arise and before the courts know how they will arise is not the way we typically handle constitutional litigation. . . .

Nor can we rely on previous government searches of Warshak's e-mails to hypothesize the factual context of the next search. Even if the record contained the full text of the NuVox and Yahoo! service-provider agreements (it does not. . .), we would run into a similar conjecture problem. Just as there is little basis for assuming the government will conduct another ex parte search of Warshak's e-mails, there is little basis for assuming any future search will concern e-mails facilitated by these service providers, as opposed to e-mails facilitated by other service providers. . . .

Concerns about the premature resolution of legal disputes have particular resonance in the context of Fourth Amendment disputes. In determining the "reasonableness" of searches under the Fourth Amendment and the legitimacy of citizens' expectations of privacy, courts typically look at the `totality of the circumstances,’ . . . reaching case-by-case determinations that turn on the concrete, not the general, and offering incremental, not sweeping, pronouncements of law. . . . Courts thus generally review such challenges in two discrete, post-enforcement settings: (1) a motion to suppress in a criminal case or (2) a damages claim . . . against the officers who conducted the search. In both settings, the reviewing court looks at the claim in the context of an actual, not a hypothetical, search and in the context of a developed factual record of the reasons for and the nature of the search. A pre-enforcement challenge to future e-mail searches, by contrast, provides no such factual context. The Fourth Amendment is designed to account for an unpredictable and limitless range of factual circumstances, and accordingly it generally should be applied after those circumstances unfold, not before.

Warshak v. U.S., supra.

There’s more, but it’s all along the same lines.

For those of us who think we do (should) have a 4th Amendment expectation of privacy in the content of our emails, it’s heartening to note that 5 of the judges dissented. Judge Martin, whose dissent was joined by the others, began his opinion as follows:

Why do today what can be done tomorrow? I dissent because I not only believe this case is ripe for review, but because the majority gives unwarranted deferential treatment to the government. Such treatment would not be afforded a private litigant defending against a motion for preliminary injunction, and should not be given here.

He also has a nice ending, IMHO:

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.

You can find the full opinion here. Search for opinion # 08a0252p.06.