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Sixth Circuit: SCA Unconstitutional to Extent It Permits Warrantless Seizure of Emails From ISP
By Martin G. Weinberg; Robert M. Goldstein
In the August 2007 issue of The Champion, we authored an article
contending that the government’s use of the Stored Communications Act1
(SCA) to seize emails from a citizen’s Internet Service Provider (ISP)
without a warrant violated the Fourth Amendment, relying upon Warshak v.
United States2 — a case we both litigated — as a paradigm for future
litigation regarding the intersection of the SCA and the Fourth
Amendment. Steven Warshak was the target of a federal criminal
investigation. He brought a civil challenge to the government’s use of
secret subpoenas, issued pursuant to 18 U.S.C. § 2703(b) and § 2703(d),
to compel his ISP to produce more than 26,000 emails. A panel of the
Sixth Circuit originally held that the government’s warrantless seizure
of the emails did indeed violate the Fourth Amendment, but that decision
was subsequently vacated on procedural grounds by the en banc court,3
which deferred deciding the grave Fourth Amendment issues raised by t
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