July 11, 2008 | By Kevin Bankston

Sixth Circuit Dodges Constitutional Question on Email Privacy; Warshak Case Dismissed on Procedural Grounds

Today, the full panel of Sixth Circuit judges dismissed [opinion] on procedural grounds the case of Warshak v. US, a lawsuit challenging the constitutionality of no-notice, warrantless searches of email stored by an email provider. A three-judge panel of Sixth Circuit judges had previously held [PDF], based in part on briefing by EFF [PDF], that the federal statute that authorized such searches of remote email accounts — the Stored Communications Act — violated the Fourth Amendment on its face.

It's a shame that the court refused to reach the critical question at the center of the Warshak case: does the Fourth Amendment require the government to obtain a search warrant based on probable cause before secretly rifling through your Yahoo! mail or Gmail accounts? Without clear legal rulings on such issues, we face continued uncertainty about how the Constitution protects our private Internet communications, uncertainty that the government will continue to exploit.

The Sixth Circuit en banc panel held that because Warshak could not demonstrate that the government was likely to conduct further no-notice warrantless searches of his email — the government had twice previously done so — the issue was not "ripe" for a judicial decision. EFF shares the sentiments of Circuit Judge Boyce F. Martin, Jr., who authored the original decision finding the SCA unconstitutional as well as the dissent in today's decision:

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.... 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.

The decision is disappointing, but does not reject the underlying constitutional ruling on the merits. The original reasoning remains sounds, and this decision only reinforces the importance of our mission to obtain a clear ruling from the courts that your emails, IMs, text messages and web browsing receive the same Fourth Amendment protection as your private snail mail and telephone calls. Help EFF fight for an enduring and robust Fourth Amendment by joining now.

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