US court dismisses case challenging warrantless e-mail searches

But the underlying issue of Fourth Amendment protections was not addressed

The Sixth Circuit Court of Appeals last week dismissed on procedural grounds a case involving the constitutionality of warrantless no-notice searches of e-mail messages stored by an ISP.

In doing so, the court left unanswered the question of whether the Fourth Amendment requires the US government to obtain warrants based on reasonable cause before it can compel e-mail service providers to secretly turn over a person's email records.

The case involves an Ohio man, Steven Warshak, who in February was convicted by a jury on 93 counts of mail and wire fraud, money laundering and other federal offenses. Warshak ran a company called Berkeley Premium Nutraceuticals, which marketed, distributed and sold herbal supplements. The conviction followed an FBI probe that began in 2005, when Warshak's company was suspected of making false and misleading advertising claims, misrepresentation and various other fraudulent practices.

As part of the probe into the company's activities, the FBI compelled NuVox Communications and Yahoo! -- Warshak's ISPs - to turn over all of the contents, log files and back-up data related to his e-mails -- including those that had been stored for more than 181 days. The statute allowing the government to see Warshak's e-mails -- and the rationale provided by the government -- required investigators to inform Warshak about its action within 90 days.

But the government didn't notify Warshak about its behind the scenes efforts for nearly a year after it first sought the e-mail information.

Warshak filed suit in June 2006, seeking declaratory and injunctive relief, claiming that the forced disclosure of his e-mails violated his Fourth Amendment rights. He also argued that the government's failure to tell him what it was doing violated the Stored Communications Act, the statute used to obtain his records. When his lawyers failed to get an assurance from the government that it wouldn't continue such searches in future, Warshak asked for a preliminary injunction prohibiting the practice.

An Ohio District Court granted the preliminary injunction, noting that e-mails held by an ISP "were roughly analogous to sealed letters, in which the sender maintains an expectation of privacy." That court also agreed to enjoin additional seizures of e-mails from an ISP account for any resident of the Southern District of Ohio without notice to the account holder.

When prosecutors appealed the decision, a three-judge panel at the Sixth Circuit Court initially upheld the preliminary injunction, saying it was needed to protect the Fourth Amendment rights of Warshak and others who might be in his position. But the full Sixth Circuit court overturned that decision last week, formally lifting the preliminary injunction that had been in place since June 2006. The most recent decision, however, did not touch upon the issue of the government's right to conduct warrantless, secret email searches.

Writing for the majority, Judge Jeffrey Sutton said the case was not fit for judicial review because the court has no idea whether the government plans to conduct warrantless searches of Warshak's e-mail in future. He said Warshak's complaint was based on "contingent future events" that might not occur. "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," he wrote.

Circuit Judge Martin Boyce, who wrote for the five dissenting judges in the case, said that the government's failure to tell Warshak about the searches after the 90-day period expired was a clear violation of the Stored Communication Act that the majority on the court had overlooked. The ruling gives "unwarranted deferential treatment to the government," Boyce said. "It is but another step in the ongoing degradation of civil rights in the courts of this country," he noted in his dissent.

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