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En banc Sixth Circuit vacates preliminary injunction limiting the federal government's ability to seize email communication without first providing the email account holder with prior notice and an opportunity to be heard

En banc Sixth Circuit vacates preliminary injunction limiting the federal government's ability to seize email communication without first providing the email account holder with prior notice and an opportunity to be heard: The majority in today's ruling, which issued by a 9-5 margin, holds that the plaintiff's "constitutional claim is not ripe for judicial resolution."

Circuit Judge Jeffrey S. Sutton wrote the majority opinion. Circuit Judge Boyce F. Martin, Jr. issued the dissenting opinion, which concludes:

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. --, 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.

Judge Martin was the author of the three-judge panel's decision in this case, which affirmed in large measure the preliminary injunction in question.

My earlier coverage of the three-judge panel's ruling from June 2007 can be accessed here. And at this link, the Electronic Frontier Foundation provides access to the appellate briefs originally filed in the case.

Full post as published by How Appealing on July 11, 2008 (boomark / email).