CA6: Plaintiff has no standing to contest future potential searches of his e-mails by the government in the hands of the ISP; dissent: Founding Fathers would be “speechless”

CA6: Plaintiff has no standing to contest future potential searches of his e-mails by the government in the hands of the ISP. Warshak v. United States, 532 F.3d 521, 2008 FED App. 0252P (6th Cir. 2008) (en banc):

There are several reasons why this claim is not “fit” for judicial review. To start, we have no idea whether the government will conduct an ex parte search of Warshak’s e-mail account in the future and plenty of reason to doubt that it will, making this a claim that depends on “contingent future events that may not occur as anticipated, or indeed may not occur at all.” Texas v. United States, 523 U.S. 296, 300 (1998) (internal quotation marks omitted). Answering difficult legal questions before they arise and before the courts know how they will arise is not the way we typically handle constitutional litigation. See Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 894 (1990).

Senior Circuit Judge Boyce R. Martin, dissenting:

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.