Our August 2007 issue reported on the ruling of the U.S. Court of Appeals for the Sixth Circuit that individuals have a reasonable expectation of privacy, protected by the Fourth Amendment, in the contents of emails stored by an Internet service provider. In that decision, Warshak v. United States, 490 F.3d 455 (6th Cir. 2007), the Court in affirming a preliminary injunction issued by a district court, held that the Fourth Amendment to the U.S. Constitution precluded the government from obtaining ex parte access to the contents of email in long-term storage without a showing of probable cause. Accordingly, the panel held unconstitutional § 2703(d) of the Stored Communications Act (18 U.S.C. § 2703(d)) to the extent that it purports to authorize law enforcement agencies to obtain the contents of emails from a commercial Internet service provider upon less than probable cause and without notice to the person who sent the emails, and enjoined the government from using § 2703(d) ex parte in the Southern District of Ohio.

Last month, the Sixth Circuit sitting en banc vacated that panel decision and remanded the case to the trial court for dismissal. Warshak v. United States, No. 06-4092 (6th Cir. July 11, 2008). The majority, consisting of nine of the 14 judges on the full court, held that the case was not ripe for review, asserting that whether the government will conduct ex parte searches of Mr. Warshak's emails in the future was doubtful if not unlikely, inasmuch as a jury had convicted him of the criminal charges earlier this year. A five-judge minority of the court dissented and would have affirmed the issuance of the preliminary injunction, declaring that the majority ruling "is but another step in the ongoing degradation of civil rights in the courts of this country." 

Interesting, from a constitutional perspective, is that the majority believed that whether § 2703(d) violates the Fourth Amendment could not be decided on a facial challenge. The majority held that the constitutional issue will turn in part on "the expectations of privacy that computer users have in their emails—an inquiry that may well shift over time, that assuredly shifts from Internet-service agreement to Internet-service agreement and that requires considerable knowledge about ever-evolving technologies." Thus, the Sixth Circuit concluded that the issue should be addressed only in the context of a specific search and a specific Internet service agreement.

Last year's panel decision marked the first appellate decision to extend to email the constitutional protections accorded telephone conversations and letter mail. The vacating of that decision casts uncertainty on the privacy protection of the contents of stored email. Only time will tell whether the most recent Warshak decision is a curiosity born of bad facts and an odd procedural posture, or whether, as the dissenters believe, it foreshadows lessened privacy in the contents (as opposed to email headers and IP addresses) of email.