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Submission + - Court Refuses to Rule on ECPA No-Warrant Searches (

utkalum writes: After Steven Warshak's indictment and conviction on charges of mail and wire fraud, money laundering and other federal charges, he learned that key evidence in the case was obtained by the government under a 1986 law permitting no-warrant searches of email communications stored for longer than 180 days. He also learned that, despite the Electronic Communication Privacy Act's requirement that such searches be disclosed to the suspect no more than 90 days after they were commenced, the Government simply couldn't be bothered to comply. Now, the United States Court of Appeals for the Sixth Circuit has refused (9-5) to hear Warshak's constitutional challenge to the Act, claiming that the question raised is not yet ripe for adjudication:

we also "have no idea" what e-mail accounts, or what types of e-mail accounts, the government might investigate. Toilet Goods Ass'n, Inc. v. Gardner, 387 U.S. 158, 163 (1967). That uncertainty looms large in a debate about the expectations of privacy in e-mail accounts. The underlying merits issue in the case is this: In permitting the government to search e-mails based on "reasonable grounds," is 2703(d) consistent with the Fourth Amendment, which generally requires "probable cause" and a warrant in the context of searches of individuals, homes and, perhaps most analogously, posted mail? The answer to that question will turn in part on the expectations of privacy that computer users have in their e-mails — 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 everevolving technologies. Because "[t]he task of generating balanced and nuanced rules" in this area "requires a comprehensive understanding of technological facts," Orin S. Kerr, The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution, 102 Mich. L. Rev. 801, 875 (2004), Warshak's claim epitomizes the kind of dispute that would profit from "a concrete factual context," Ammex, 351 F.3d at 706.

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Court Refuses to Rule on ECPA No-Warrant Searches

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