Warshak v. United States ( 2008 )

BOYCE F. MARTIN, JR., Circuit Judge,

dissenting,

with whom Judges DAUGHTREY, MOORE, COLE and CLAY join.

Apparently taking a page from the Supreme Court, today the majority dismisses this case by concluding that it is not ripe for adjudication. Why do today what can be done tomorrow? I dissent because I not only believe this case is ripe for review, but because the majority gives unwarranted deferential treatment to the government. Such treatment would not be afforded a private litigant defending against a motion for preliminary injunction, and should not be given here.

I.

The majority adequately recites the facts, but conveniently leaves out what I believe to be an essential element of the case. As the majority correctly states, § 2703(d) allows a court to issue an order based on less than probable cause, allowing the government to search a suspect’s email communications stored with an electronic service provider for more than 180 days. Typically, in order to effect such a search, the Stored Communications Act requires the government to notify the suspect of the search. However, § 2703(b)(1)(B) allows the court to grant the government a 90-day delay of the notice if notification would result in “(A) endangering the life or physical safety of an individual; (B) flight from prosecution; (C) destruction of or tampering with evidence; (D) intimidation of potential witnesses; or (E) otherwise seriously jeopardizing an investigation or unduly delaying a trial.” 18 U.S.C. § 2705(a)(2), (b). What the majority leaves out is the fact that while the government was initially granted a 90-day delay before being required to notify Warshak of its searches of his email accounts, when the 90 days expired, the government ignored the statute and failed to notify Warshak of its searches. Over a year went by before Warshak became aware that his emails had been searched. While members of this Court may argue over whether or not the delayed notification section of the Stored Communications Act is constitutional, it is uncontroverted that the government violated the law by failing to notify Wars-hak 90 days after searching his emails.

The fact that the government was unable to abide by an arguably unconstitutional provision of the Stored Communications Act informs any analysis of Warshak’s motion for preliminary injunction. Not only is Warshak alleging that the delayed notification provision of the act is unconstitutional, but he is also alleging that the government cannot be trusted to abide by the actual requirements of that law as written.

II.

Instead of reaching the question that is on everyone’s mind — whether or not the delayed notification provision of the Stored Communications Act is constitutional — the majority sidesteps the question and instead finds that Warshak’s claims are unripe for judicial review. In finding that Warshak’s claims are not quite “fit” for judicial review, the majority analyzes this case under the framework outlined by the Supreme Court in 1967 in Abbott Laboratories v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967). Under Abbott Laboratories, the majority asks whether (1) “the claim [is] ‘fit [ ] ... for judicial decision’? And (2) what is ‘the hardship to the parties of withholding court consideration’?” See Maj. Op. at 527-30. My question is this: why not analyze the ripeness of Warshak’s claims under the much more recent precedent of this Circuit? This Circuit has held that a ripeness analysis involves three — not two — questions: (1) the “likelihood that the harm alleged by [the] plaintiffs will ever come to pass”; (2) “whether the factual record is sufficiently developed to produce a fair adjudication of the merits of the parties’ respective claims”; and (3) “the hardship to the parties if judicial relief is denied at [this] stage in the proceedings.” Adult Video Ass’n v. U.S. Dept. of Justice, 71 F.3d 563, 568 (6th Cir.1995) (internal citations omitted). My guess is that it is easier to say that Warshak’s case does not fall under the amorphous term “fit”, than to confront the actual facts and assess the likelihood of his emails being searched in the future. Because the majority failed to analyze this case under this Circuit’s precedent, I will do so here.

The original panel found that the two prior searches of Warshak’s email (which violated the terms of the Stored Communications Act), coupled with the government’s continued threat of searching his emails without notification, satisfied the first ripeness prong. Warshak v. U.S., 490 F.3d 455, 467 (6th Cir.2007). The en banc majority disagrees with this conclusion. Instead, it argues that the only reason the government gave in its application for delaying notice of the searches was that disclosure would seriously jeopardize the investigation, and because Warshak has now been indicted, there is no longer any possibility that the investigation would be jeopardized by disclosing a subsequent search of his emails. From this reasoning, the majority further posits that because Wars-hak is aware of the investigation, the government has no reason for keeping the searches confidential, and the possibility that the government will conduct another ex parte search without notice has therefore become “exceedingly remote.” Respectfully, I disagree with the majority’s Pollyannish view of federal criminal investigations.

First, the government’s stated reason in the prior applications for delayed notification is not the only reason recognized by the statute. The statute allows a court to delay notice if it would result in “(A) endangering the life or physical safety of an individual; (B) flight from prosecution; (C) destruction of or tampering with evidence; (D) intimidation of potential witnesses; or (E) otherwise seriously jeopardizing an investigation or unduly delaying a trial.” 18 U.S.C. § 2705(a)(2), (b). Even if we accept the majority’s tenuous conclusion that once a suspect is indicted there is no longer a possibility the investigation will be jeopardized or unduly-delayed, there are at least four more statutorily recognized reasons for delaying notice that are not negated by the fact of indictment. Post-indictment, there is always a risk that life or physical safety could be endangered. There is a risk that the suspect could flee or destroy evidence. There is a risk that a potential witness could be intimidated. It could always be stated that these issues remain and an application could support delayed notice to search Warshak’s emails again. Let us not delude ourselves into thinking that the government’s investigation automatically stops once a suspect is indicted. That is not the case at all. Warshak is still the subject of an ongoing investigation. The possibility that he may be the subject of another ex parte search is anything but “extremely remote.”

Second, the majority makes much of the fact that Warshak “has ample notice of the investigation — indeed notice of the worst sort: He has been indicted.” Maj. Op. at 526. The majority seems to suggest that once a suspect is indicted, the government no longer needs to give notice of any subsequent searches because the suspect now knows he is being investigated. Our Constitution suggests something entirely different. While it is true that Warshak knows he is being investigated and now is facing criminal prosecution, it is not true that he has ever been given notice of any clandestine searches of his email. It is certainly possible that Warshak may be subject to future searches, and it is certain that his rights under the Fourth Amendment have not been tolled because of his indictment. The United States must either give notice prior to any future searches or it must apply for a search warrant supported by probable cause. The notice we are concerned with is not whether or not Warshak is aware he is being investigated, but whether or not the United States has abided by the mandates of the Fourth Amendment. The fact that he is on “notice” that he is being investigated has no bearing on the ripeness of his claim.

Under the first prong of this Circuit’s ripeness analysis, it is clear that given the factual context of Warshak’s claim — the past e-mail seizures, the ongoing nature of the investigation against Warshak, and the government policy of seizing emails without a warrant or notice to the account holder — there is a sufficient “likelihood that the harm alleged by [the] plaintiffs will ever come to pass.” Adult Video Ass’n, 71 F.3d at 568.

The second prong of our analysis looks to whether the factual record is sufficiently developed to allow for a fair adjudication of Warshak’s claim. Id. The original panel held, and the district court concluded, that the past seizures of Warshak’s e-mails presented an adequate factual basis on which to assess the government’s conduct. Although future seizures, and not the past incidents, are those upon which Warshak’s challenge is focused, the likely similarity clearly renders them a sufficient backdrop for judicial review.

The majority disagrees and contends that the factual record is insufficient because it has “no idea” what types of email accounts the government might investigate and, thus, has no basis for determining whether Warshak has a reasonable expectation of privacy in any single account. I could not disagree more. The original panel opinion sufficiently addressed this issue, analyzing the relevant facts, and pertinent Supreme Court opinions, as well as the most recent precedents of our sister circuits. That panel, as well as the district court, concluded “that individuals maintain a reasonable expectation of privacy in emails that are stored with, or sent or received through, a commercial ISP.” Warshak, 490 F.3d at 473. Rather than address the facts and law cited by the panel’s opinion, the majority fails to cite one case dealing with electronic communications in the privacy context, instead relying on a single professor’s law review article.

In its zeal to uphold the power of the government to intrude into the privacy of citizens, the majority has forgotten where this case lies procedurally. We are merely at the preliminary injunction stage. Every day in civil litigation across this country, private parties seek preliminary injunctions against other private parties relying on past relevant wrongful conduct and the threat of future wrongful conduct. The factual record necessary to support a preliminary injunction does not have to be complete. In fact, we have stated that “[t]he purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held.” Certified Restoration Dry Cleaning Network, L.L.C. v. Tenke Corp., 511 F.3d 535, 542 (6th Cir.2007) (quoting Univ. of Texas v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981)). “Given this limited purpose, a preliminary injunction is customarily granted on the basis of procedures that are less formal and evidence that is less complete than in a trial on the merits.” Id. Warshak “is not required to prove his case in full at a preliminary injunction hearing and the findings of fact and conclusions of law made by a court granting the preliminary injunction are not binding at trial on the merits.” Id. I challenge the majority to find a case where this or any other court has not granted a preliminary injunction against a defendant who has twice previously committed wrongful conduct, has a written policy in favor of committing the wrongful conduct, and refuses to promise not to commit the wrongful conduct in the future. Despite the fact that a violation of one of the bedrock principles of the Bill of Rights has been alleged, today the majority has decided to treat the government more favorably than a private litigant would be treated in a similar preliminary injunction setting.

Turning to the final prong of this Circuit’s ripeness analysis, I believe the only party that would suffer undue hardship if the preliminary injunction were not granted is Warshak. The government’s ex parte approach to obtaining Warshak’s emails precludes the possibility of judicial review at a subsequent and more appropriate time. Thus, as Warshak points out, he will likely suffer the hardship of continuing to have his Fourth Amendment rights violated with limited legal recourse if his current claims are deemed unripe. The government, on the other hand, suffers no hardship if the preliminary injunction is granted. By the terms of the modified preliminary injunction, the government is prohibited only “from seizing the contents of a personal e-mail account maintained by an ISP in the name of any resident of the Southern District of Ohio, pursuant to a court order issued under 18 U.S.C. § 2703(d), without either (1) providing the relevant account holder or subscriber prior notice and an opportunity to be heard, or (2) making a fact-specific showing that the account holder maintained no expectation of privacy with respect to the ISP.... ” Warshak, 490 F.3d at 482. The United States may still seek a search warrant based on probable cause, or subpoena the contents of an email account, and the ex parte search and delayed notification procedures of § 2703(d) are still available if the terms of the email account establish that the account holder has no reasonable expectation of privacy in the account. The only tool taken from the government is the one that allegedly violates the Fourth Amendment. While that one investigatory tool is now gone, Warshak’s constitutional rights remain intact. Hopefully, given the mandates of the Constitution, we should strive to maintain that status quo through a preliminary injunction. We should not allow a citizen’s constitutional rights to be violated when the United States is not even minimally burdened here in its criminal investigations.

Based on the foregoing, I respectfully dissent.

III.

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. The majority makes much of the fact that facial challenges are no way to litigate the constitutional validity of certain laws. Yet our Supreme Court has no problem striking down a handgun ban enacted by a democratically elected city government on a facial basis. See Dist. of Columbia v. Heller, — U.S.-, 128 S.Ct. 2783, 171 L.Ed.2d 637, 2008 WL 2520816 (June 26, 2008). 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.