When can a court be wrong and right?
In Warshak v. United States, No. 06-4092 (6th Cir. June 18, 2007) Martin, J. (20 pages), available at http://www.eff.org/legal /cases/warshak_v_usa/6th_circuit_decision_upholding_injunction.pdf, the U.S. 6th Circuit Court of Appeals upheld, with slight modification, the district court’s preliminary injunction declaring unconstitutional on its face that portion of the Stored Communications Act (SCA), codified at 18 U.S.C. Section 2703(b), which allows law enforcement to obtain a court order, to compel an Internet service provider to divulge the contents of emails stored longer than 180 days, by meeting a standard of proof lower than probable cause. Warshak is important because, although it was wrongly decided, its reasoning reflects a growing trend in Fourth Amendment jurisprudence to protect not just people, places and things, but information.
