Another Wonderful "Activist" Judge
Unfortunately, he was the dissenter:
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 case containing this inspiring dissent is a bit tricky procedurally. It involves a section of the Stored Communications Act (21 U.S.C. 2703), one provision of which allows the magistrate issuing a search warrant for emails to authorize law enforcement not to tell the subject of the search that it is occurring. (Compare: when police show up at your home with a search warrant, you of course find out about it, get to inspect it, retain counsel, etc.)
This provision apparently has never been challenged head-on in federal court. It would seem to be not only facially unconstitutional but also a bit of a legislative non sequitur. The fact that a search warrant for your home or office “tips you off” that something’s afoot doesn’t mean the government gets to do it secretly. One simply doesn’t follow from the other (just ask those retroactively immune telcos that enabled the government to spy on American citizens on American soil without notice).
Anyway, in this case a fraudster was having his email searched by federal law enforcement, with a warrant but without notice, under the relevant section of the Stored Communications Act. He was eventually tried and convicted for his malfeasance and is now suing to prevent any further no-notice searches of his email. To which the en banc majority looks askance (on ripeness grounds), as it does to the original trial judge’s injunction preventing the government from ever again engaging in any such no-notice searches of anyone’s email:
Nor, for a separate reason, was it appropriate in this case to grant a preliminary injunction in favor of persons other than Warshak. “While district courts are not categorically prohibited from granting injunctive relief benefiting an entire class in an individual suit, such broad relief is rarely justified because injunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.”
Of course, what the majority conveniently glosses over in this case is that the “defendant” here is the government. The same “government” that is going around quite possibly violating the Fourth Amendment via an unconstitutional provision of a federal statute.
What, exactly, is so bad about being “more burdensome than necessary” when constitutional liberties are at stake? Do we get to toss away entire provisions of the Bill of Rights whenever the government complains that they are “burdensome”? Wasn’t that a key issue just resolved in District v. Heller?
More from the majority:
Individuals subjected to allegedly unconstitutional searches and seizures have at least two alternatives short of a preenforcement, facial attack on the enabling statute. They may file a motion to suppress in the event the government tries to use the evidence against them in a criminal prosecution. Or they may file a §1983 or a Bivens action against the officers who conducted the search.
As I’ve mentioned in other contexts, being wronged and then compensated after the fact is not the same as never having been wronged in the first place. Isn’t forcing every private, innocent-until-proven-guilty individual to be “harmed first, then ask questions later” the real instance of a “more burdensome than necessary” practice? If a provision of the SCA or any other statute is unconstitutional, then let’s say so and be done with it.
The case is Warshak v. U.S., No. 06-4092 (6th Cir., July 11, 2008) (PDF – 15 pages) (Via FourthAmendment.com.) My previous praise of an “activist” judge here.
Filed under: Fourth Amendment, Law Enforcement Abuses, Privacy Issues