Legal Commentary

DOJ Moots Constitutional Challenge to Getting an E-mail With Less Process Than a Warrant

By Orin Kerr

I wrote about the dispute on Wednesday. I commented at the time:

This is big news, and not just because it was mentioned on the Drudge Report. DOJ and some of the ISPs have been disagreeing about this issue quietly for years. What makes this case unusual is that the two sides have decided to litigate it in open court. Assuming the parties are litigating this for keeps, it should at least work its way up to the Tenth Circuit. Further, the decision might very well create a split or invalidate a federal statute in a way that prompts Supreme Court review. So stay tuned: This is an important case to watch.

Scratch that. Today DOJ pulled the plug on its motion to compel, ending the dispute rather than litigating it. Rats! This issue has been a major question mark for at least a dozen years, and it?s high time the courts provided a definitive answer to it. Anyway, I hope the ISPs will continue to challenge the issue and that we?ll get a definitive ruling eventually. (C?mon, DOJ, what are ya, chicken? ;-))

Full post as published by The Volokh Conspiracy on April 16, 2010 (boomark / email).