We have previously posted on the First Circuit's opinion in
United States v. Councilman, 373 F.3d 197, 201 (1st Cir. 2004),
withdrawn, 385 F.3d 793 (1st Cir. 2004) and
en banc ruling pending, in the following:
For more information see
United States v. Councilman at the Electronic Privacy Information Center. Professor Orin Kerr, who wrote the amicus brief on behalf of the Center for Democracy and Technology, The Electronic Frontier Foundation, The Electronic Privacy Information Center, The American Library Association, The American Civil Liberties Union, and the Center for National Security Studies as Amici Curiae in Support of the United States in favor of reversal, has recently pointed out two matters in
this post at
The Volokh Conspiracy:
- The First Circuit has yet to decide the case after rehearing en banc (oral argument was held, I believe, on December 8, 2004); and
- If the en banc First Circuit upholds the panel's opinion, there is already a piece of clarifying legislation that would likely be passed by congress to remedy the situation, so Councilman's holding may have little or no impact beyond the particualr case itself.
There was a strong dissent in the
Councilman panel opinion by Circuit Judge Kermit Lipez, which I believe the
en banc Court will likely follow. But if it doesn't, it is at least a good thing that Senator Leahy is ready for the outcome with legislation. This should be easy legislation to get passed, as both DOJ and civil liberties groups are in agreement on this one.
