Criticism of a recent Ninth Circuit Court case regarding email searches.

[jim bell]

https://www.lawfareblog.com/surprisingly-weak-reasoning-mohamud

[Partial quote follows}By Orin Kerr Friday, December 23, 2016, 7:30 AMIn a recent post here at Lawfare, April Doss argues that the Ninth Circuit’s decision in United States v. Mohamud “got it right.” In her view, the critics of the decision—myself included—are just wrong.  I disagree.  Here’s why I think the reasoning of the decision is hard to defend. First, an important caveat: My argument is about reasoning and not result. A lot of discussion on Mohamud focuses on the bottom line of which side won.  That’s understandable, but it’s not my concern. My concern is whether the reasoning of the case makes sense as a matter of Fourth Amendment law.When viewed from that perspective, Mohamud strikes me as awkward and unconvincing.  Its core holding is weak and hard to square with Supreme Court doctrine.  Other parts of it border on the incoherent. And it could have reached its result much more easily without the conceptual wrong turns. I.  There Is No “Targeting” Doctrine in Fourth Amendment LawIn Mohamud, the government obtained e-mails from a monitoring point inside the United States that collected e-mails between Mohamud inside the United States and another person who was a foreigner outside the United States.  Mohamud had Fourth Amendment rights; the other person didn’t.   How does the Fourth Amendment apply to a communication in transit between them?  Here’s the Ninth Circuit’s first key Fourth Amendment holding:[end of partial quote]
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