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STEVEN WARSHAK, Plaintiff-Appellee, v. UNITED STATES OF AMERICA, Defendant-Appellant. |
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Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
No. 06-00357—Susan J. Dlott, District Judge.
Argued: December 5, 2007
Decided and Filed: July 11, 2008
Before: BOGGS, Chief Judge; MARTIN, BATCHELDER, DAUGHTREY, MOORE, COLE,
CLAY, GILMAN, GIBBONS, ROGERS, SUTTON, COOK, McKEAGUE, and GRIFFIN,
Circuit Judges.
SUTTON, Circuit Judge. Since 1986, Title II of the Electronic Communications Privacy Act of 1986, Pub. L. No. 99-508, § 201, 100 Stat. 1848, codified as amended at 18 U.S.C. §§ 2701–2711, commonly referred to as the Stored Communications Act, has authorized the federal government to require internet service providers to disclose the contents of “electronic communication[s]” of their customers in certain circumstances, including by way of an ex parte court order. Id. § 2703(d). The government obtained two such orders in 2005 to search Steven Warshak’s e-mails. When Warshak learned about the orders, roughly a year later, he filed a declaratory judgment action, seeking to invalidate § 2703(d) under the Fourth Amendment, and he moved for a preliminary injunction, seeking to enjoin the government from conducting further ex parte e-mail searches. The district court granted the motion and enjoined the government from using § 2703(d) to seize the contents of “any personal email account[]” belonging to Warshak or “any resident of the Southern District of Ohio” without “prior notice and an opportunity to be heard.” JA 129. We vacate the preliminary injunction because Warshak’s constitutional claim is not ripe for judicial resolution.