2 posts • joined Tuesday 15th July 2008 21:25 GMT
Back @ Scott Herter
Hey, it was easy to miss. The whole ex parte component really blurs the line between the two, which was basically the point of the lawsuit. Plus, the article probably wasn't as clear as it could have been, so I'm grateful for the chance to clarify the issues.
@ Scott Herter
There's a subtle distinction between a warrant and the type of court order that's at issue here. Warrants don't require a hearing for the subject of the warrant, but they do require probable cause; court orders to release emails under the SCA do require a hearing for the subject of the order, but they require less justification than probable cause. Since the orders here were ex parte, the plaintiff essentially argued that the requirements for a warrant applied and since the government didn't go through the proper steps to secure a warrant, the searches violated the Fourth Amendment. The first two courts agreed with him, but the full 6th Circuit decided to skip ruling on the merits of the case by holding that the issue wasn't ripe for adjudication.